This group focuses on the laws, policies and practices relating to the criminal justice system, police powers, and the legal rights of persons with mental illness. In broad terms the group advocates for the protection of the fundamental rights and liberties of citizens (including the presumption of innocence and the right to a fair trial) in the justice system. These liberties and rights are currently under pressure from governments.
The NSW Council for Civil Liberties is shocked to hear that Violet Coco, a Fireproof Australia protestor, was sentenced to 15 months in custody with a non parole period of 8 months for engaging in peaceful protest.
We understand that she was charged with offences of disrupting vehicles, interfering with the safe operation of the Harbour Bridge, possessing a bright light distress signal in a public place, failing to comply with police direction and resisting or hindering police. All of these charges arose from her blocking one lane of traffic on the Sydney Harbour Bridge for approximately 25 minutes.Read more
Update 8 November 2022: The findings of the NSW Law Reform Commission into the inquiry of discrete parts of the Bail Act 2013 (NSW) have supported the NSWCCL submission concluding that no changes should be made to the Bail Act 2013 (NSW) in relation to the issues raised by the terms of reference.
Bail laws exist to keep victims and the community safe until criminal proceedings are finalised, while safeguarding the presumption of innocence and general right to be at liberty until a matter is determined by the courts.
NSWCCL's submission supports this. Given their significant potential to limit individual liberty, changes to the Bail Act must be justified by a clear and compelling policy rationale. Any such changes must be supported by appropriate evidence.
Concerns by the majority of stakeholders were expressed that the contemplated changes would likely:
• unnecessarily capture conduct that does not constitute a high degree of criminality
• increase the rate of bail refusals, including for people who may not receive a custodial penalty if found guilty
• lead to further growth in an already significant remand population, which would adversely affect individuals and the community
• frustrate government initiatives to address the overrepresentation of Aboriginal people in custody
• add further complexity to an already intricate statutory framework, and
• increase court workloads and backlogs by adding to the complexity of bail applications.
The Bail Act endeavours to strike a balance between community safety, the presumption of innocence and the general right to be at liberty.
Show Cause Requirement
In our submission, we identified inherent difficulties with the show cause requirement. NSWCCL submitted that show cause should be reserved for the most serious and high risk offences and the report reached a similar conclusion. The report identified inherent difficulties with the show cause requirement.
This included criticisms that it:
· is unnecessary, as the unacceptable risk test is sufficient to address risks, and
· contributes to the over-incarceration of people who have not been convicted of any
Building on the second point, we described the show cause requirement as akin to a presumption against bail. The Aboriginal Legal Service argued that show cause “reverses the onus of proof, encroaches on the presumption of innocence and can lead to detention for allegations of relatively minor offending”.
The NSW Police Force (NSWPF) argued that the “inherent risks” associated with firearms offences warrants making further categories of firearms offences subject to the show cause requirement. It considered the existing inclusion of certain firearms offences as show cause offences demonstrated Parliament’s awareness of these risks.
However we argued and the report agreed that by selecting only certain categories of firearms offences for inclusion in section 16B, Parliament signalled it regarded them as more serious and suggestive of risk than other firearms offences. That is, the show cause requirement already covers the firearms offences considered to be the most serious and to involve the greatest degree of risk. As the Bar Association argued, the “gravamen of serious firearms offending is already captured by section 16B(1)(d)”.
The report supported with our submission that we do not support the inclusion of other firearms offences. The inquiry found "Certainly we did not receive any evidence, in the form of statistics or caselaw, demonstrating any need for this expansion."
The impact of remand on individuals and the community
Remand can significantly affect the lives of people subjected to it. This is particularly the case for vulnerable members of the community who are disproportionately represented in the criminal justice system. Remand can negatively
affect mental health, with higher rates of suicide among the remand population compared with the sentenced prison population.
NSWCCL and the Corrective Services NSW (CSNSW) noted in our submissions that even a short time in custody can have a detrimental impact on the individual. It can include loss of employment, loss of accommodation, reduced access to services and breakdown of relationships. It also increases the likelihood of recidivism. It is particularly concerning if the person being held on remand is not likely to receive a custodial sentence and is therefore being exposed to the prison system only through remand.
The committee concluded that they were are not persuaded that the Bail Act should include further guidance on the meaning or legislative definition of “criminal associations”. The Bar Association supported our position to oppose the
introduction of a legislative definition. If any definition was introduced, we believe it should contain safeguards to specify that simply associating with someone who has a criminal history is not sufficient to establish a person has criminal associations.
3. Show cause and firearms offences
Recommendation 3.1: Expanding show cause to include further firearms offences
The list of show cause offences in section 16B of the Bail Act 2013 (NSW) should not be expanded to include further firearms offences.
Recommendation 3.2: Unlawful private possession of a pistol or prohibited firearm
Section 16B(1)(d)(ii) of the Bail Act 2013 (NSW) should not be amended to include the unlawful possession of a pistol or prohibited firearm in a private place as a show cause offence.
Recommendation 3.3: Possession in breach of a firearms prohibition order
Section 16B of the Bail Act 2013 (NSW) should not be amended to include the possession of a pistol or prohibited firearm in breach of a firearms prohibition order as a show cause offence.
4. Show cause and criminal association offences
Recommendation 4.1: Expanding show cause to further criminal association offences
The list of show cause offences in section 16B of the Bail Act 2013 (NSW) should not be expanded to include further offences relating to criminal associations.
5. Show cause and criminal association offences
Recommendation 5.1: Legislative guidance on “criminal associations”
The Bail Act 2013 (NSW) should not be amended to include further legislative guidance on the meaning of “criminal associations”.
6. Other issues raised in this review
Recommendation 6.1: Adding other orders to section 18(1)(f) of the Bail Act 2013 (NSW)
Firearm prohibition orders and serious crime prevention orders should not be added to the list of orders in section 18(1)(f) of the Bail Act 2013 (NSW).
The full report is available here.
The New South Wales Council for Civil Liberties (NSWCCL) welcomes the opportunity to be involved in the review of discrete parts of the Bail Act 2013 (NSW) (Bail Act) conducted by the NSW Law Reform Commission.
The terms of reference (TOR) for this review are as follows:
- Whether the existing list of firearms offences treated as ‘show cause’ offences under the Bail Act 2013 (NSW) should be expanded.
- Whether further legislative guidance should be provided on the meaning of ‘criminal associations’ under the Bail Act 2013 (NSW).
- Whether the list of offences relating to criminal associations that are treated as ‘show cause’ offences under the Bail Act 2013 (NSW) should be expanded.
Following a three year hiatus, the Meeting of Attorneys-General (MAG) has supported a proposal to raise the age of criminal responsibility from 10 to 12. While the announcement was timely with Universal Children’s Day last Saturday it remains inadequate. MAG’s announcement can only be seen as an acknowledgement of the need to raise the age in order to properly respect the rights of children but does not explain the rationale for their slated proposal which will continue to see children incarcerated and punished contrary to their human rightsRead more
Adopted at the 2021 AGM
The NSWCCL firmly believes that the Australian community, inclusive of federal, state and territory governments, is collectively responsible for promoting and supporting the welfare of children and young people to allow them to reach their potential and transition into productive and engaged citizens. NSWCCL strongly supports the ‘Raise The Age’ campaign in calling all Australian governments to raise the age of criminal responsibility for children to 14 years.Read more
It goes without saying that it's unacceptable for police officers to wear symbols associated with white supremacy on their standard issue Police uniforms.
However, over the past couple of years, our members have observed, consistent with increasingly frequent media reports, NSW Police Officers displaying symbols and icons associated with white supremacy.
Today we wrote to the Police Commissioner and Minister asking them to explain:
1) What policies and processes are in place to respond to members of the NSW Police Force who are found to be displaying symbols and icons associated with white supremacy?
2) What steps are being taken to ensure that NSW Police Force members do not hold white supremacist ideologies, participate in white supremacist groups or display their symbols or icons?
More information: read our letter
(The photos sent with our letter showed identifying details of the officers in question - you can see cropped versions on the right of this page).
We're looking at doing more work around displays of white supremacy and NSW Police as a result of recent complaints, so please get in touch if you have examples or stories that you could share: [email protected]
Urgent action is required in response to the news of the worsening outbreak of COVID cases in prisons and the tragic death of a NSW youth corrections officer.
We understand from media reports on 17 September 2021, that more than 40 NSW corrections staff were Covid-positive (not including staff at the privately-run Parklea prison, where the outbreak began) as well as more than 300 inmates across the prison system also testing positive, including 84 First Nations people.
The risk we flagged in August, of Covid spreading rapidly in prisons, is becoming more likely by the day and it is crucial that all necessary measures be taken immediately to mitigate the risk of this happening.Read more
We are increasingly concerned with the policing practice of the NSWPF as it responds to the pandemic. Watching the escalation of violence in Victoria, we are also concerned with the possible possession and use of pepper pellets and hard squash-ball like missiles.
Disproportionate police response
In a series of recent media clips members of the NSWPF have approached and/or arrested several young men visibly of racial and/or ethnic minority backgrounds. In these incidents, the NSWPF have alleged the young men have not been wearing face masks. Police intervention of this nature directly undermines the common law principle that arrest is indeed a sanction of last resort.
Possession and use of pepper pellets etc
Prompted by recent events in Victoria, the NSWCCL is alarmed about the possible possession and use by the NSWPF of pepper pellets and hard squash-ball like missiles in the community.
NSWCCL wrote to Commissioner Fuller to urge him to ensure that NSW Police use the powers granted to them under the Public Health Act 2010 in a manner that respects human rights. We also asked whether equipment similar to that seen deployed in Victoria is being held in reserve in NSW and in what circumstances we are likely to see it used.
Public Health Orders to manage the COVID-19 pandemic are being made and amended on the fly.
Given the speed at which they are drafted, the constant amendment and possibly the lack of care taken in their drafting, they have proven to be incredibly confusing.
They are almost impossible to understand - new evidence of the confusion that the Orders are causing emerges every day. Is sitting on a park bench or a beach eating something considered outdoor recreation? Is light walking a good enough reason to take one's mask off?
NSWCCL asks: how can the rule of law prevail where its subjects cannot ascertain the relevant law?
Lack of oversight
These Orders have a significant impact on our individual rights and liberties, effectively introduce serious offences, and are controlling the lives of millions of NSW residents - they should be subject to intense parliamentary scrutiny.
However, that isn't happening. The Orders are made by the Health Minister under section 7 of the Public Health Act 2010 and are effective immediately, with no review required. The checks and balances that usually apply to legislation are not in place.
The Regulation Committee
Since 2017, NSW's Regulation Committee has had a power to review "any instruments of a legislative nature regardless of its form, including the policy or substantive content of the instrument". Since last year, it has had the power to self refer.
NSWCCL has written to the Committee urging it to take on the scrutiny and review of the Orders, whether that is through the establishment of an inquiry, public or private communications with government or otherwise.
More information: Read our letter to the Regulation Committee
Until recently, NSW had seen very few COVID cases in prisons. But that has changed, with Croakey Health Media reporting on Monday that:
"In response to queries from Croakey, NSW justice officials last week confirmed seven (including one staff member) COVID-19 cases in prisons and juvenile justice facilities, the highest number in a justice jurisdiction since the pandemic began, according to international advocacy group Human Rights Watch."
This is of particular concern given the over-representation of Indigenous people in our prisons, coupled with their disproportionate COVID risk. NSWCCL is calling on the government to take urgent action, including:Read more
It is essential that the people of NSW be united in their drive to combat COVID-19 and have confidence in the measures imposed by government. There can be no doubt that properly calibrated temporary measures designed to reduce the spread of the virus are required.
But on grounds of overreach and disproportionality, the NSW Council for Civil Liberties (CCL) is deeply concerned about the special powers to be given to the police, announced yesterday.
We are also concerned at the imposition of a curfew and limit of exercise to one hour per day on people within the 12 specified local government areas.Read more