More than 200 not-for-profit and community organisations have backed a major report calling on the Australian Government to strengthen its commitment to human rights in its laws, policies and practices.
The report has been prepared ahead of a United Nations Human Rights Council review of Australia in a process known as the Universal Periodic Review, which each member of the UN must undergo every four years.
Edwina MacDonald, a Legal Director at the Human Rights Law Centre and one of the report coordinators, said it offers a comprehensive insight into the state of human rights in Australia, at a crucial time with the COVID-19 crisis set to exacerbate existing inequalities and create a host of new human rights challenges.
“The human rights that many Australians have taken for granted are suddenly front and centre in public consciousness – essential rights like healthcare and education are coming under enormous strain and structural economic inequalities will hit disadvantaged communities hard. This report provides a snapshot of the existing problems and is a stark reminder that Australians will not face this pandemic on equal footings,” said MacDonald.
Australia’s Universal Periodic Review by the UN Human Rights Council will take place early 2021. The NGO Report was coordinated by the Human Rights Law Centre, the Kingsford Legal Centre and the Caxton Legal Centre, working with an Advisory Group comprised of 16 NGOs, and authors from 57 NGOs.
The NSW Council for Civil Liberties welcomes the unanimous decision by the Senate to establish a Select Committee on COVID -19 matters.
The Committee has a wide scope. It is empowered “to inquire into and report on:
- a) the Australian Government's response to the COVID-19 pandemic; and
- b) any related matters.”
It has strong powers to gain information, hold public or private hearings, publish evidence, findings and recommendations and a direction that it be “provided with all necessary staff, facilities and resources and be empowered to appoint persons with specialist knowledge for the purposes of the committee with the approval of the President”.
It will have a core membership of 7 being: 3 nominated by the Leader of the Opposition in the Senate; 2 nominated by the Leader of the Government in the Senate; 1 nominated by the Leader of the Australian Greens; and Senator Jacqui Lambie. Other Senators will be able to be nominated as participating – but not voting - members.
On the face of it, this new Select Committee should be able to make a significant contribution to democracy in oversighting the Government’s responses to the COVID -19 pandemic. In so doing it will hopefully provide some much-needed scrutiny of Government decisions and their implementation to fill an astonishing accountability vacuum created by the closure of the Australian Parliament until 11 August 2020.
The Government’s continued refusal to amend the Parliament’s sitting schedule to provide for sittings over the intervening months is a betrayal of the people’s rights to transparency and accountability in government.
Previous statement: 6 April 2020, Call for senate committee scrutiny of government responses to COVID-19
Previous statement: 30 March 2020, Statement: COVID-19 and Government oversight - Prolonged Parliamentary Adjournment unacceptable and Dangerous for Democracy
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 15th September and the Australian Parliament not until 11th August. The Australian Parliament will sit for one day next Wednesday (8th 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.
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
The right to protest should not be curtailed - statement re car convoy protesting COVID-19 risks to refugees held in detention
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’
National Coronavirus Helpline - Call this line if you are seeking information on coronavirus. The line operates 24 hours a day, seven days a week - 1800 020 080
Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020 - Signed 10:20pm 30th March
Law Access NSW LawAccess NSW is available on 1300 888 529 between 9am to 5pm, Monday to Friday to help with legal issues including those arising from the COVID-19 pandemic.
Policing COVID in Australia - Have you been stopped by police or had any interaction with police since the new public health rules were introduced in your area? Do you feel you have been treated unfairly? Do you know of an incident that concerns you? Visit the Policing COVID website.
Australian Women Against Violence Alliance - COVID-19 resources for a range of at-risk and minority communities
Australia at Home - A resource to bring together people from across Australian civil society. Hosting lunchtime briefings and online series of conversations with some of Australia’s most experienced and interesting thinkers.
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
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 in quarantine should have access to fresh air, exercise and mental health professionals. 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 (31st 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 26th 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: firstname.lastname@example.org
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
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
 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: email@example.com 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.