The NSW Council for Civil Liberties (CCL) welcomes the opportunity to respond to the
Consultation Paper by the NSW Sentencing Council: Victims’ involvement in sentencing.
(September 2017) (The Paper).
The Paper provides a useful summary of the range of issues around victims’ involvement in
sentencing. CCL has focussed on responding briefly to questions relevant to the issues we regard
as important from a civil liberties perspective. We have focussed on answers rather than
reworking the arguments for various possible responses – as these are reasonably familiar and
are well covered in the Paper.
We have not responded at this time to the questions relating to restorative justice but hope
there may be a later opportunity to provide some input as to our views on this very important
There is widespread and well argued community and expert support for a national body to expose and prevent serious and systemic corruption within, and relating to, public administration (including the electoral process and parliament including MPs and their staff).
In April this year, NSWCCL joined others in arguing strongly for the immediate establishment of such a body to a Senate Select Committee specially established to consider (yet again..) this longstanding and increasingly urgent issue. (see earlier post)
At the time there was some optimism that at last effective action by the Parliament might be possible. While it was clear the Government would not soften its opposition, it did appear that Labor may shift its position and support some kind of national anti-corruption body. Significantly, the Select Committee was chaired by Senator Jacinta Collins from the ALP.
Unfortunately the recently released report of the Select Committee is somewhat of a disappointment in that its recommendations are equivocal.
Noting the number of recent inquiries into the issue, NSWCCL argued that the time for a decisive recommendation for immediate action on a national body had come:
‘We are concerned that if there is no firm recommendation for the establishment of a NIC from this Inquiry, the same lack of follow-through would again be a likely outcome. ‘
‘Given there appears to be greater openness for action on this issue in the current Parliament than was previously the case, a decisive recommendation may generate positive outcomes. This may not be so at a later time. ‘
Sadly, this argument did not prevail -though it was argued by numbers of key submissions. With the support of the ALP and coalition members, the majority report recommended a transitional approach with priority being given to the position the Government and its agencies had favoured - that the focus of action should be strengthening the existing national framework:
'The committee recommends that the Commonwealth government prioritises strengthening the national integrity framework in order to make it more coherent, comprehensible and accessible.' (Rec 1)
However, the Committee did not reject the strong arguments in support of an overarching anti-corruption body. In fact it found that the evidence was pretty persuasive:
'On the basis of the evidence before it, the committee also believes that the Commonwealth government should carefully weigh whether a Commonwealth agency with broad scope to address integrity and corruption matters—not just law enforcement or high risk integrity and corruption—is necessary. It is certainly an area of great interest to the public and irrespective of whether it is achieved by way of a new federal agency or by some other mechanism(s), current arrangements must be strengthened' (par 4.141, p218)
and therefore called for 'careful consideration' of such a body:
'The committee recommends that the Commonwealth government gives careful consideration to establishing a Commonwealth agency with broad scope and jurisdiction to address integrity and corruption matters.' (Rec 2)
NSWCCL argued that there was no incompatibility between deciding to establish a national body and ongoing analysis of and strengthening of the national integrity framework.
There was committee support for this stronger position from the NXT representative Senator Skye Kakoschke-Moore and Senator Hinch in added comments and from the Green's Senator Lee Rhianon in a dissenting report. All argued for an immediate start on the establishment of a national integrity body.
The Greens also agreed with the NSWCCL position that the new body should be empowered to conduct public inquiries where it is in the public interest to do so.
The Committee made 5 other process related recommendations which are all positive and reasonable- but in our view cannot be an effective alternative to a single overarching national integrity commission.
Where to next
The body of the report makes for a strong argument for a swift move to a national body. The danger is that, given the equivocal recommendations, the moment for the necessary, decisive action will be lost in the chaotic and contentious parliamentary context.
We do not yet have a Government response to the Committee report - or from the Labor Party. However, it is not likely that the Government will decide to go beyond the Committee's recommendations and quite possible that it will ignore recommendation 2 - and possibly others - and focus only on recommendation 1.
NSWCCL will continue to argue the urgent need for a national body.
But we will also join efforts with those seeking to keep alive and progress the other recommendations and try to keep the Government explicitly working on a staged agenda with the eventual establishment of a broad based national integrity commission as a likely outcome.
Dr Lesley Lynch
The Custody Notification Service (CNS) is a legislative scheme requiring police to contact an Aboriginal legal service every time an Aboriginal person enters police custody. The scheme was designed and recommended by the Royal Commission into Aboriginal Deaths in Custody in 1991. Since its implementation in NSW around 17 years ago, the CNS has seen the rate of Aboriginal deaths in NSW Police custody plummet from around 18 per year, in the late 1980s, to zero for an unbroken period of over ten years.
Earlier this year, the Commonwealth Government sought to reform the federal CNS (after a finding by the ACT Supreme Court in R v CK  ACTSC 251, that existing federal legislation did not require ACT Police to notify an Aboriginal legal service when an Aboriginal person entered police custody). In amending federal CNS legislation, the Commonwealth consulted at length with the Australian Federal Police but failed to consult widely with Aboriginal legal services. Accordingly, the new 'model' Commonwealth CNS fails to provide Aboriginal people in custody with some of the key procedural rights to which they are entitled under the NSW CNS scheme (click below for further details relating to the proposed federal CNS). Ultimately, the CCL takes the view that the legislation in its unamended form will increase Aboriginal deaths in custody and rates of indigenous incarceration.
The CCL has advised a Senate Legal and Constitutional Affairs Committee of Inquiry and liaised with a range of Aboriginal legal services around the country, in respect to the consequences of the new Bill. While the CCL's submission to the Senate Committee was supported by ALP and Greens Senators, it failed to convince the Coalition Government to substantively change the legislation. Rather, in acknowledgement of the submission by the CCL, the Senate Committee has recommended amending the explanatory memorandum of the Bill to assist interpretation of the legislation in such a way that is more closely aligned with the NSW CNS. The CCL fears that such change is not enough to counter injustice against Aboriginal people within the federal criminal justice system.
A copy of the submission may be found here.
NSWCCL PUBLIC STATEMENT
The NSWCCL calls for the withdrawal of this extraordinary Bill. It is unwarranted, unnecessary legislation.
It is a harsh response in a context which calls for more responsible, compassionate and sustainable remedies to the serious policy failures of Governments which have left so many people homeless in Sydney.
The existing powers that NSW Police have under LEPRA (Part 14) and ) and the Crown Lands Act (Sections 156, 157) are more than adequate to remove persons who present any danger or threat to the public or are engaged in any unlawful activity in Martin Place.
Homeless people sleeping in Martin Place- or other public place- are not acting unlawfully.
This Bill effectively criminalises homelessness. It is a retrograde step, contrary to the move to abolish the crime of vagrancy and other victimless crimes more than 30 years ago.
Homeless people may be causing some level of inconvenience to the public, but some level of inconvenience may be the cost we have to pay for the major homeless problem we have in Sydney.
Inconvenience can be managed more compassionately and responsibly than by rushing to force homeless people out of Martin Place when many will, of necessity, occupy other public space in inner Sydney.
NSWCCL urges the Government to abandon this rash Bill and re-engage with the City of Sydney Council and other agencies to find more sustainable solutions. Homeless people should not be forcibly removed from public spaces until alternative ongoing accommodation is available for them.
The reallocation of the purpose built Sirius building to the current inner city homeless is one obvious part of the longer term solution that could be implemented quickly.
As part of its response to the Coroner's Report on the Lindt Cafe seige and other recent terrorist events in Australia the NSW Government has flagged a package of new counter-terrorism laws which it will implement. Much of this legislation will be part of a new national counter-terrorism package which is to be more thoroughly considered by a special COAG meeting in the near future.
Today however, the question of careful consideration was not on the agenda when the NSW Government introduced the TERRORISM LEGISLATION AMENDMENT (POLICE POWERS AND PAROLE) BILL 2017 with the intention of forcing it through Parlaiment in one or two days.
This Bill extends police powers to use lethal force in a declared terrorist incident as well as mandating a presumption against parole for people who have demonstrated support for or links to terrorist activity.
NSWCCL is deeply concerned about aspects of this Bill -especially the proposed broader trigger for the use by police of lethal powers (shoot to kill powers) in a declared terrorist incident- or a likely terrorist incident.
We do not consider it necessary- police have adequate and appropriate powers to use lethal force now when there is an imminent or immediate threat to life or of serious injury.
We consider it likely to have unintended and potentially dangerous consequences.
We are appalled that this Bill is being pushed through the NSW Parliament without reasonable time for consideration of the detailed drafting by the Parliament itself or the legal community.
The Bill was passed by the Legilsative Assembly this morning after a short and perfunctory debate. Only the Greens opposed it. No doubt it will be pushed through the Legislative Council this afternoon.
NSWCCL registers its concern at this hasty process and our opposition to the Bill in its current form.
NSWCCL has formally argued its strong support for a national anti-corruption agency in Australia.
We put our views in a submission to the current Senate Select Committee Inquiry on a National Integrity Commission (NIC) which continues the work of the 2016 Inquiry on the same topic: i.e. should Australia have a national anti-corruption body like the NSW ICAC and similar bodies in other states?
As a civil liberties organisation NSWCCL has previously opposed anti-corruption agencies sitting outside the established justice system and wielding extraordinary coercive and covert powers. We have cautiously shifted our position in response to the growing threat that increasingly complex forms of corruption pose to the public good in Australia: undermining the integrity of our political system, distorting the policy making process, diverting resources from public good objectives and generally undermining public trust in our political class, governing institutions and public administration.
If not more effectively checked, corruption poses a threat to democratic values and processes–including individual rights and liberties. From a civil liberties perspective, the balance between greater public good and greater public harm has shifted. In our view the Government's claim that its current 'multi-agency' approach is effective is demonstrably wrong.
If the public interest is to be protected against the corrosive effects of serious and systemic corruption, NSWCCL acknowledges that the establishment of anti-corruption agencies equipped with extraordinary investigative powers- albeit with proper constraints and safeguards- is necessary and proportionate.
NSWCCL's support is absolutely dependent on strong constraints and safeguards that establish the optimal balance between individual rights and the effectiveness of the NIC in exposing corruption for the public good. Getting this balance right has been well traversed in NSW since ICAC's establishment in 1988 and subsequently in other states as the operation of the state anti-corruption bodies has come under much scrutiny and review. The Select Committee has a wealth of state level experience on which to develop its recommendations.
Transparency and public hearings
Central to our support for a NIC was that it have the power to hold public hearings of its investigations. This will be one of the most controversial issues to be determined- if the Committee recommends the establishment of a NIC.
There is a good reason for this level of controversy. There is a serious tension between the potential for unfair reputational damage for individuals being publicly investigated without the protection of a fair trial before a court - versus the undoubted public good that flows in many ways from open investigation and exposure of corruption in these hearings.
NSWCCL considers that ICAC's use of public hearings has overwhelmingly benefited the public good. It has also provided proper transparency to ICAC's investigations which, by allowing public scrutiny of part of ICAC’s operations, provides an important dimension of oversight of the agency. It has also been hugely important in exposing the level and nature of corruption in NSW which is a positive in itself- but also generates much needed pressure on Governments to take appropriate anti-corruption action.
The public hearings, in so far as they have built considerable community support for ICAC, also provide some level of protection from inappropriately motivated Government interventions around ICAC’s powers.
In February 2016 a Senate Select Committee was set up to ‘inquire into whether a national integrity commission should be established to address institutional, organisational, political and electoral, and individual corruption and misconduct.’ NSWCCL gave some time to considering what position –if any- it would take on this contentious matter, however the Turnbull-generated double dissolution meant the Inquiry lapsed.
The Committee produced an interim report of no great consequence in that it did not go beyond recommending further research into appropriate anti-corruption systems. It did however canvass the issues with the current system in some detail and it did conclude that there were shortcomings that needed addressing. Even this cautious conclusion was too much for the two government members of the committee (Eric Abetz and David Johnson) and they included a dissenting view that there was no evidence of such shortcomings.
The political debate as to the need for a national anti-corruption body is again very much alive. Not surprisingly, the Senate moved as soon as the current session began to reactivate an inquiry into whether a National Integrity Commission is needed and if so its scope and power. It is to report by 15th August. Senator Gallagher moved the resolution on behalf of the leader of the ALP in the Senate (Penny Wong).
This Senate decision pre-empted a motion later that day from the leader of the Greens, Senator Di Natale calling on the Senate to bypass an inquiry and move straight to the establishment of ‘an independent federal anti-corruption commission to oversee federal members of parliament and the public service”. This was defeated.Read more
A new body of vital importance to the NSW justice sector -the Law Enforcement Conduct Commission (LECC) – was set up in January following the passage of The Law Enforcement Conduct Commission Act last year. It brings together the oversight and investigative roles of the Police Integrity Commission, the Police Division of the Office of the Ombudsman and the Inspector of the Crime Commission into a single civilian body to oversight police operations. It has royal commission type powers in some contexts. Its oversight powers relate to the NSW Police Force and the NSW Crimes Commission.
It is the latest outcome from the long (and unfinished) campaign to achieve effective independent oversight of NSW Police operations and was largely shaped by the recommendations of the 2015 Tink Report. There are grounds to expect this body will significantly improve some aspects of police oversight and accountability but there are gaps and weaknesses in its structure which do not augur well for the much needed reform of police culture in critical areas and may undermine its overall effectiveness.
1. NSWCCL advocates for a juvenile justice system that:
- Prioritises the child’s best interests, including that it provides education equivalent to their rights within the community
- Caters for children’s specific needs, particularly in relation to age, physical and mental wellbeing and cultural background;
- Aims towards rehabilitation and social integration, not punishment, with detention only used as an absolute last resort in exceptional circumstances and for the shortest appropriate period of time;
- Upholds children’s rights, including the right to liberty, security, freedom from arbitrary detention, and to a fair trial;
- Ensures accessible and well-funded legal and social support services for children;
- Treats children with respect and dignity;
- Protects children from torture and other cruel, inhuman or degrading treatment;
- Preserves a child’s relationship with family and community; and
- Together with other social and educational institutions, undertakes proactive, preventative measures to divert young people from the criminal justice system and prevent re-offending.
2. In light of Australia’s human rights obligations under the International Covenant on Civil and Political Rights, the Convention on the Rights of the Child and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and associated United Nations juvenile justice guidelines, NSWCCL calls for:
- The minimum age of children’s criminal responsibility to be raised from 10 to 12 years old across all Australian states and territories;
- The maximum age of criminal responsibility for young people to be raised to 18 years old;
- The abolition of mandatory sentencing for children and young people;
- The reduction of rates of young people in detention pre-trial on remand;
- Clearer and more consistent prohibitions on punishment for children in detention across all states and territories;
- The separation of young people younger than 18 years from adults in detention facilities, accompanied by the removal of Australia’s reservations to Articles 10(2)(b) and (3) of the International Covenant on Civil and Political Rights, and Article 37(c) of the Convention on the Rights of the Child; and
- Ratification of the Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the Third Optional Protocol to the Convention on the Rights of the Child.
3. NSWCCL supports policies aimed at reducing the incarceration rates of young Aboriginal and Torres Strait Islander peoples. These policies should be developed in a way that is consistent with their rights under the UN Declaration on the Rights of Indigenous Peoples, including but not limited to the right to self-determination, autonomy and freedom from discrimination.Read more
Concerns over human rights standards in Australian juvenile justice centres were brought to national attention with Four Corners’ recent expose on Don Dale Detention Centre in the Northern Territory. However, these revelations were not unprecedented. After a two-year inquiry, Australian Law Reform Commission’s 1997 Seen and Heard report presented a number of proposals for reform of juvenile justice processes and detention facilities.
15 years later, the UN Committee on the Rights of the Child (‘UNCRC’) noted that Australia’s juvenile justice system ‘still requires substantial reforms for it to conform to international standards.’ In 2013, the Australian Human Rights Commission called for a review of the Australian Government’s reservations to the Convention on the Rights of the Child. It also recommended ratification of the Optional Protocol to the Convention Against Torture and better monitoring of juvenile justice legislation and policy. These were echoed in a report published by Amnesty International last year, especially to address the overrepresentation of Aboriginal children in detention.
It follows that, while only a small proportion of Australia’s youth population has contact with the criminal justice system, there remain serious, yet still unaddressed, concerns about protection of the rights of those who do. This report will evaluate juvenile justice legislation across Australian states and territories in relation to international human rights law. Those areas of law which do not comply with Australia’s human rights obligations include: the age of criminal responsibility for young people, mandatory sentencing, detention on remand, discipline, living conditions within detention centres and both national and international mechanisms for investigation of detention facilities. In doing so, the report will highlight how law reform and other practical initiatives may be necessary to better protect the civil liberties and human rights of children throughout all stages of the juvenile justice system; in particular, the right to protection from cruel, inhuman or degrading treatment, freedom from arbitrary detention and the right to a fair trial...
 Committee on the Rights of the Child, Consideration of Reports Submitted by States Parties under Article 44 of the Convention, 60th sess, UN Doc CRC/C/AUS/CO/4 (28 August 2012) .
 Australian Human Rights Commission, Children’s Rights Report 2013 (2013)
 Amnesty International, A Brighter Tomorrow: Keeping Indigenous Kids in the Community and Out of Detention in Australia (2015) <http://www.amnesty.org.au/images/uploads/aus/A_brighter_future_National_report.pdf>
 Australian Institute of Health and Welfare, Youth Justice in Australia 2014-15 (April 2016) Australian Government <http://www.aihw.gov.au/WorkArea/DownloadAsset.aspx?id=60129554930> 2.