To increase participation by healthcare providers and patients, the health records of all Australians are being automatically uploaded onto the My Health Record database unless they opt out between 16 July and 15 October 2018. There will be ability to opt out after this date, but a My Health Record cannot be deleted, only deactivated and removed from view. Consent in an opt out model relies on apathy, rather than encouraging control by the patient. In practice, the opt out process is cumbersome to implement and, in many cases, patients do not have the capability or capacity to exercise the controls to opt out or implement access restrictions. NSWCCL recommends that, unless there are specific health reasons for not doing so, individuals opt out of the MHR.
Uploading of documents by a healthcare provider is permitted by “standing consent” until that consent is withdrawn by the patient. It is recommended that patients exercise their right to withdraw consent and advise their doctors when certain information is not to be uploaded. Audit measures include notification to the patient of first time use by a healthcare “organisation”. However, this and other privacy measures do not eliminate the risk of unauthorised access, unintentional breaches and unwarranted disclosure of patients’ health records, by individuals within or outside those organisations. Proper auditing needs to be specific and visible to the patient, permitting them to decide what level of notification is desired. Disclosure of records should be limited to the minimum number of persons necessary to perform a task.
The Federal “Framework to guide the secondary use of My Health Record system data” is being introduced in 2020. Patients will have to withdraw or opt out of future plans for very broad secondary use of health records, rather than being able to give explicit consent for each disclosure of medical or health data to a third party.
Read more here My Health Record Summary
Statement amended on 26 June: Following media interest, the NSW Council for Civil Liberties (CCL) has responded to criticisms from the NSW Government regarding the breadth of these regulations. CCL appreciates the government’s engagement with our concerns. This statement has been amended to incorporate the Government’s response, which is explained more fully in the final section of this statement. The regulations have also been provided at greater length, to explain other prescribed activities, and to set out penalties stipulated under the regulations. CCL remains opposed to the regulations in question.
On 1 July, new regulations will come into effect, granting the NSW State Government incredibly wide powers to disperse or ban protests, rallies, and virtually any public gathering across approximately half of all land across the state. CCL strongly opposes these regulations. As is explained in the final section, the NSW Government has responded to our criticisms by arguing that the new regulations are broadly the same as previous regulations. This argument is factually correct, although fines that may be imposed under the new regulations have been increased. However, this does not answer criticism of the merit of the regulations.Read more
The NSW Council for Civil Liberties (CCL) welcomes the dismissal of anti-protesting law
charges against Bev Smiles, Bruce Hughes and Stephanie Luce in Mudgee Local Court on
The trio, known as the “Wollar Three”, attended a protest against the expansion of the
Wilpinjong mine in 2017. They blocked a road, and held up a banner. They faced two charges
under the Inclosed Lands Protection Act 2016, of which they were acquitted. They were also
charged with obstructing pedestrians and drivers. Magistrate David Day found them guilty of
obstructing the road, but did not record any convictions against them.
COAG has agreed to the establishment of a National Facial Biometric Matching Capability which will have access to all drivers licences in Australia - as well as visa, passport and citizenship photos. This massive biometric database will be available to state and federal security and law enforcement agencies. The rationale for this very significant increase in the capacity for real time government surveillance of most Australian residents is, of course, to better protect us.
We want governments to do all that is possible and proportionate to protect us and, as part of that, we support effective coordination between states and the federal agencies. However, NSWCCL fears that this development in mass surveillance capacity will have- over time - significant implications that are not currently appreciated for the nature of our society and the robustness of our democracy.
We note that our political leaders in their untroubled endorsement of this- and related- initiatives have blithely dismissed any concerns about the admitted impact on our privacy or other liberties we have traditionally valued.
We could take greater comfort in their assurance that they will simultaneously be 'maintaining robust privacy safeguards'if they showed a greater appreciation of, and concern for the associated risks and the likely implications of this increased capacity for state surveillance on citizens.
At this stage there is little detail as to how this increased surveillance capacity will work and what will be done to protect this massive trove of our personal biometric data from hacking or misuse.
NSWCCL has joined with other civil liberties and privacy organisations to express our deep concern at this new and significant expansion of surveillance capacity. It looks to us like a step too far even in the context of an ongoing terrorist threat.
NSW Council for Civil Liberties calls for stronger protection of the right to political protest. The recent media statements by the Premier Gladys Berejiklian, Pru Goward and Tony Abbott concerning the homeless people camping in Martin Place highlight the need to protect our right to political protest.
Protection of civil liberties is weak in Australia. The Constitution contains a weak protection of the right to political protest. In NSW we do not have the protection of a bill of rights.
Peaceful political protest often involves disruption of public spaces. If we view the right to peaceful political protest as worth upholding, the community may need to tolerate some inconvenience.
Public statements by politicians to the effect that the police should be required to dismantle peaceful political protests occurring in public spaces ignore the fact that the right to political protest is a fundamental right in a mature democracy.
Now is the time to revisit the need for a bill of rights – visit Human Rights for NSW
Civil penalties for non-consensual sharing of intimate images -“revenge porn”
In a recent submission to the Department of Communication & the Arts, NSWCCL made specific recommendations to a proposed Commonwealth government prohibition on non-consensual sharing of intimate images, colloquially referred to as “revenge porn”. We also addressed the question of appropriate civil penalties to deter, prevent and mitigate harm to victims, by individuals and content hosts, who breach the prohibition.
NSWCCL considers the non-consensual sharing of intimate images to be a privacy issue. It occurs when experiences, deemed private, are distributed without consent to the public, the victim’s family, work mates, employer or friends. Nonetheless, privacy requires a balance of interests, therefore defences of public interest and consent should be available to the perpetrator.
The prohibition proposed by the government would be modelled on the Enhancing Online Safety for Children Act 2015 (Cth) (EOSC Act). NSWCCL agrees that many of the provisions in the EOSC Act are suitable to deal with the non-consensual sharing of intimate images. The EOSC Act establishes the role for a Commissioner to oversee a cooperative social media service scheme. The Commissioner is also authorised to approach the Federal Court for civil penalties, enforceable undertakings and injunctions. A great benefit to complainants is that once a complaint proceeds, the Commissioner’s office takes over the process for removal of the material. NSWCCL agrees that the Commissioner should have a similar role to deal with non-consensually shared intimate images.Read more
NSWCCL recently lodged a submission with the Attorney General’s Department and the Department of Communications and Arts in January 2017. We reiterated our view that the current metadata scheme is an affront to civil liberties and oppose its extension into civil proceedings. Extension of the uses to which metadata may be put is one of the reasons that we opposed the introduction of laws requiring collection and retention of metadata in the first place.
In our submission we noted the international experience, which suggests that metadata rarely makes a difference in criminal investigations.
A commonly cited justification for allowing access to metadata is in family violence or international child abduction cases. However, experts in the field are not convinced this justification is warranted, bearing in mind that perpetrators of domestic violence can also use retained metadata to track their victims.
It is necessary to balance against this issue the fact that allowing access to metadata in civil proceedings can jeopardise the safety of whistleblowers and open the floodgates to fishing expeditions during litigation. Allowing access to metadata in these circumstances is a clear example of mission creep.
For the retention and use of metadata to be justified, it must be beneficial and proportionate to the benefit. In our view, it is not necessary for the reduction of terrorism and other serious crimes, let alone the far less serious issue of civil litigation. Extension of the uses to which metadata may be put is one of the reasons that we opposed the introduction of laws requiring collection and retention of metadata in the first place.
In noting this, NSWCCL recommended that:
- The existing legislation should be repealed and a targeted data surveillance scheme instituted instead.
- The period for which information is stored should be reduced from 2 years to 6 months
- Civil proceedings should continue to be excluded.
We are looking forward to attending an Evening with Edward Snowden in Sydney, which is being staged by ThinkInc. NSA whistleblower Edward Snowden will be appearing via video link. We are running a competition for supporters who are yet to join CCL. The first 2 supporters to join CCL as members will receive a complimentary ticket to the event. Please email us at email@example.com when you sign up as a member to enter the competition. Supporters and members may also obtain a discount on the ticket price by entering the code NSWCCL when booking. See you on the 28th!Read more
In early 2016, a group of organisations and individuals formed and launched the Digital Rights Watch, an advocacy group whose mission is to ensure that Australian citizens are equipped, empowered and enabled to uphold their digital rights.
The coalition, which included representatives from NSWCCL, saw the need to form DRW in response to increasingly oppressive policy by the government in eroding the rights of its citizens online, such as mandatory data retention, website blocking legislation, industry code for online copyright infringement, and the constricting effects of the Trans-Pacific Partnership (TPP) on the digital rights of Australians.
The DRW is mobilising for various upcoming campaigns, and we are looking for any volunteers and supporters who are interested in joining with us to deliver a fairer, freer, internet for all Australians!
Got questions/comments on this exciting new campaign? Email us at firstname.lastname@example.org
Tuesday (13 October) is the key date in data retention. From this day, most internet companies and telcos must start storing their customer's metadata and making it accessible to government agencies without a warrant.
The Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015 requires telecommunications service providers to retain their customers' metadata for 2 years. Retained data will include the customer’s identity, and the date, time and form of communications. There is an exception if the Commonwealth decides that a service provider is allowed to delay implementation. The exception lasts for up to 18 months.
Government agencies tasked with enforcing criminal law such as the state and federal police will be able to access the retained data, if they consider it reasonably necessary for enforcing the criminal law. Other agencies tasked with imposing civil fines (such as the Australian Tax Office, Local Governments or the RSPCA) may also be given access to the data.
NSW Council for Civil Liberties considers mandatory data retention a core civil liberties issue. NSWCCL President Stephen Blanks said "the regime is indiscriminate and poorly regulated. There is a real risk the stored information might be misused by government agencies. It’s akin to banning everyone in the country from having blinds on their windows because a handful among us might be engaged in crime."