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.

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.’^[1] 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.^[2] These were echoed in a report published by Amnesty International last year, especially to address the overrepresentation of Aboriginal children in detention.^[3]

It follows that, while only a small proportion of Australia’s youth population has contact with the criminal justice system,^[4] 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...

In March this year, the NSW government passed legislation aimed at intimidating anti-coal seam gas protesters, joining a growing trend[1] toward restricting environmental activism in Australia. This legislation, The Inclosed Lands, Crimes and Law Enforcement Legislation Amendment (Interference) Bill 2016,[2] follows similar legislation targeting Tasmanian anti-logging protesters[3] and Western Australian environmentalists.[4] The two primary purposes of the bill are to confer expanded powers on police and to severely enhance penalties for protesters.

Despite vigorous opposition from the Labor Party and the Greens, the NSW Parliament last week passed extraordinary new controls on the right to protest, on freedom of movement and association and a wide range of other constraints using police powers conferred by Serious Crime Prevention Orders (SCPO) and Public Safety Orders (PSO).

If that was not enough the Premier and Police Minister simultaneously introduced a disturbing new counter-terrorism bill  into the Parliament  -The Terrorism (Police Powers) Amendment (Investigative Detention) Bill 2016. This will allow the detention and interrogation of persons aged 14 and over for up to 14 days.

We expect this Bill to be pushed through the Parliament this week. 

The NSW Parliament is this week considering two disturbing proposals for new laws creating ‘Serious Crime Prevention Orders’ and ‘Public Safety Orders’ to combat organized serious crime.

The NSW Council for Civil Liberties (NSWCCL) has major concerns about both of these proposals.  

The Serious Crime Prevention Orders (SCPO) regime is an extraordinary, unwarranted and dangerous proposal.

It imposes major controls on persons – including not only those who have not been charged or convicted of any criminal offence- but also persons who have been found NOT guilty or have had their convictions quashed.  

The target group potentially caught up in this regime is huge and includes law-abiding citizens.

Despite widespread opposition from the legal profession, anti- CSG and environmental groups, farmers, unions, concerned citizens   and, of course,  NSWCCL the Inclosed Lands, Crimes and Law Enforcement Legislation Amendment (Interference) Bill 2016 was forced through Parliament on Tuesday.

NSW now has another set of laws which encroach on fundamental democratic rights – in this case the right to peaceful protest. It is unnecessary and disproportionate legislation. We will maintain our opposition and campaign for its repeal.

The Labor Party and the Greens made last ditch efforts to amend the Bill to remove its most disturbing provisions. Failing that they called for the referral of the Bill to a Parliamentary Committee for proper consideration and public consultation. 

Not surprisingly the Government rejected all their amendments- with the support of the Shooters Party and the Christian Democrats. The latter was a surprise given that Fred Niles had addressed the protest rally  against the Bill outside Parliament House on Tuesday assuring the crowd of his strong opposition to the Bill and his support for the right to protest in a democracy like Australia.

Amendments proposed by the Shooters and Fishers party were however accepted by the Government. One of these provides for a review of the operation of the legislation  by the Minister after 3 years. Much will have happened in three years in this important community debate around CSG activities. An earlier review would have been preferable to provide some insight into the impact of the legislation on legitimate protest around this issue. It would also been far preferable if the review  was to be done by  someone in a more independent position than the Minister – eg parliamentary committee or the Ombudsman – and that community consultation  be required as part of the review.

The other amendments were minor improvements. The most significant ensures that police directions given to protesters who obstruct traffic only refer to the individuals so doing and not to the whole gathering.  

A sad few days in the NSW parliament.

Read more about this bill on our website:

Anti-Protest laws: What are they and who hates them?

Anti-Protest bill: Community outrage grows

The outrageous Inclosed Lands, Crimes and Law Enforcement Legislation Amendment (Interference) Bill 2016– better know as the ‘anti-protest’ bill-  will be further debated in the NSW Legislative Council today.

This bill is a deliberate Government attack on the right to public assembly and public protest in NSW and proposes unwarranted and dangerous expansions of discretionary police powers.

 COPS Database Forum: October 21st 2015

On October 21st 2015, the NSW Council for Civil Liberties in conjunction with the Law Society of New South Wales held a forum on the Computerised Operational Policing System (COPS) database.

The panel comprised  Jackson Rogers, the NSW Council for Civil Liberties’ Convenor – Justice, Police & Mental Health Action Group (Chair);  Camilla Pandolfini, Senior Solicitor at the Public Interest Advocacy Centre;  David Porter, Senior Solicitor at the Redfern Legal Centre;  and Chris Watson, barrister from Forbes Chambers.

The event was a great success, and discussion both within the panel and with the attending audience brought many issues to light about the functions and impacts of the COPS database including:

• Can a person access information held about them on the COPS Database?
• How do police make entries on the COPS database?
• Are COPS Database entries used in criminal trials?
• What about false entries in the Database? 
• Is the COPS Database just proactive policing, and is that not a good thing
• What would be an appropriate oversight mechanism? 

To read the full report and minutes of the event, please follow the links below. If you are interested in this forum, or others like it, subscribe to our newsletter for more information on upcoming events, become a supporter and tell us what you think, or join NSWCCL and help support the fight for civil liberties!

COPS Database Forum: Full Report

The NSWCCL, in partnership with the Law Society, is planning a forum on the recent COPS Database, and its implications for the public. Notable speakers from the police force and legal profession are expected to host a conversation on many of the matters associated with the program. One of these is the recent settlement awarded to a class-action lawsuit on behalf of young people whose information was incorrectly entered into the database and resulted in a wrongful arrest.

The parties to a class action on behalf of young people, run by The Public Interest Advocacy Centre (PIAC) and Maurice Blackburn,  have reached a settlement of at least $1.85 million. The settlement is subject to final Court approval and paves the way for the young people affected to be properly compensated.  The class action is on behalf of young people who were allegedly wrongfully imprisoned by NSW police as a result of problems with the NSW Police database.

You may be eligible for compensation if:

1. you faced charges in the Children’s Court of New South Wales; and
2. you were arrested before 20 May 2014 by the New South Wales police for a breach of bail conditions; and
3. you weren’t actually on bail at the time you were arrested, or you were on bail but not subject to the condition you were arrested for.

Find out more here: Public Interest Advocacy Centre

**And look out for further notices about our upcoming COPS Database Forum here**