Core concerns for this group are protecting free speech and free media from unwarranted censorship and constraint and promoting open government and whistle-blower protection.
'Anti-trolling' Bill will actually protect the powerful from critique
The Social Media (Anti-Trolling) Bill 2022 is a deeply concerning development because it is really about making reforms to defamation laws in ways that could particularly favour politicians and others with sufficient resources to pursue defamation remedies, and not about reducing trolling or the damage caused by trolling.Read more
Submission: Privacy Act review
Update: The Privacy Act Review Report was released on 16 February 2023. NSWCCL was pleased to see that many of the recommendations the Council made in our submission were supported in the review.
A key recommendation in the review is ensuring the collection of, use and disclosure of personal information is fair and reasonable, including whether the “impact on privacy is proportionate to the benefit”. The Council supports the inclusion of non-exhaustive legislated factors that are relevant to determining whether the collection, use, or disclosure of personal information is fair and reasonable in the circumstances. However, it considers that clear guidance and examples of how these factors may apply in practice must be provided.
The standard of ‘fair and reasonable’ must be assessed by reference to the perspective of the individual, rather than being assessed from an APP entity’s perspective. We consider that having clear guidance from the outset, rather than waiting to see how the courts interpret such new provisions, will empower APP entities to appropriately assess whether any proposed data collection, use or disclosure would be unfairly prejudicial to, or unreasonable having consideration to the expectations of, the individual. In particular, to the extent that these factors do require consideration of what is ‘fair and reasonable’ from the perspective of the individual, the APP entity should be required to consider and satisfy each factor. This is because the protection of personal information and right to privacy should be fundamental to the Act, and should not be readily outweighed by business considerations.
The review has also proposed “direct right of action” that allows individuals to seek compensation in the Federal Court for a breach of privacy, which privacy advocates have long called for. To access the action, a claimant would first need to make a complaint to the Office of the Australian Information Commissioner (OAIC).
The Council supports the creation of a direct right of action. The NSWCCL considers it important that individuals can personally litigate a claim for breach of their privacy under the Privacy Act. However, the ability of individuals to do so is currently limited. The creation of a direct right of action would therefore give individuals greater control over their personal information by providing an additional avenue of redress under the Privacy Act. This, in turn, would encourage better compliance by APP entities of their privacy obligations under the Act.
However, the expansion of the OAIC’s funding is critical given that several proposals contained within the Discussion Paper involve the broadening of the OAIC’s current remit. Chronic underfunding will erode the effectiveness of any privacy protections the OAIC seeks to implement and support. To properly conduct both its existing and proposed activities, the OAIC must be adequately funded and consulted in respect of the resources it requires. The OAIC received limited funding to support its privacy initiatives in the 2021-2022 Federal Budget, despite a significant expansion in its activities with the onset of its Digital Economy Strategy.
NSWCCL made a submission to the Review of the Privacy Act 1988 advocating for urgent reform to modernise the Act and ensure it is fit for purpose in the digital economy. Privacy is a fundamental human right that is central to the maintenance of democratic societies and achieving respect for human dignity. In this regard, the NSWCCL submits that the right to privacy should be the paramount object of the Act and considers the two primary areas of concern in debates relating to privacy are:
- (a) the intrusive observation of one’s actions (whether by surveillance, listening, data analysis or other mode); and
- (b) the discussion and the misuse of personal information.
NSWCCL supports in-principle many of the proposals outlined in the Discussion Paper and commends the Attorney General’s Department for reflecting the legitimate privacy concerns of a broad spectrum of society. Many Australians are concerned about gaps and ambiguities in the existing privacy regime that undermine the right to privacy. This is especially important in the context of unprecedented integration of digital technology in our everyday lives.
Letter: Online Privacy Bill
NSWCCL recently wrote to the Attorney General to comment on the exposure draft of the Privacy Legislation Amendment (Enhancing Online Privacy and Other Measures) Bill 2021 (Online Privacy Bill).Read more
Speech: The need for a Federal ICAC from a civil liberties perspective
A transcript of NSWCCL President Pauline Wright's speech to the National Press Council on 1 December 2021.
As a civil liberties organisation, NSWCCL has in the past expressed serious reservations about anti-corruption agencies sitting outside the established justice system and wielding extraordinary coercive and covert powers. But 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. If the public interest is to be protected against the corrosive effects of serious lapses in integrity and systemic corruption, NSWCCL acknowledges that the establishment of anti-corruption agencies equipped with extraordinary investigative powers – albeit with proper constraints and safeguards – is both necessary and proportionate.
Corruption undermines the integrity of our political system. It distorts the policy-making process, diverts resources from public good objectives and undermines public trust in our politicians, governing institutions and public administration. Corruption harms everyone. It breeds inequality and injustice and undermines the ability of governments and people to fulfil their potential to achieve the common good, especially in challenging times.Read more
Letter: A more robust and accessible FOI regime for Australia
Freedom of Information laws are crucial to ensuring the transparency and accountability of policy and government decision making by giving Australians access to the information they need to participate fully in democratic processes.
However, systemic deficiencies in the federal FOI regime, including the existence of broad exceptions under the Freedom of Information Act 1982 (Cth) and persistent underfunding of the Office of the Australian Information Commissioner (OAIC), have eroded the effectiveness of the FOI regime, shielding politicians from public scrutiny and undermining public confidence in the integrity of government and public institutions.Read more
Submission: Public Interest Disclosures Bill
On 1 November 2021, NSWCCL made a submission to the Inquiry into the Public Interest Disclosures Bill 2021. The Bill re-writes protection for public officials who blow the whistle on wrongdoing, following a 2017 Joint Parliamentary Committee review that recommended a complete rewrite of the existing legislation.
NSWCCL endorses the Bill, which we note adopts nearly all the recommendations from the 2017 report, while noting some shortcomings.Read more
Letter: Freedom of Information and Porter's 'blind trust'
The recent deletion of freedom of information requests relating to Christian Porter’s ‘blind trust’ by the Department of Industry, Science, Energy and Resources has highlighted important gaps in Australia's freedom of information regime.
Under long-standing freedom of information laws, pending requests can be deleted when a minister leaves their role, creating a loophole for scandal-plagued ministers to avoid scrutiny.Read more
Witness K and Bernard Collaery: civil liberty and rule of law concerns
This is a transcript of a presentation given by President Pauline Wright at a Centre for Public Integrity webinar.
There are a number of civil liberty and rule of law concerns raised by the prosecutions of Witness K and Bernard Collaery including:
- Freedom of speech in the public interest
- Open justice
- Abuse of the notion of ‘national security’
- The rule of law – everyone is equal before the law and no-one is above the law
- Independence of the legal profession
Vaccine passport concerns
UPDATE 1 October: The Secretary of NSWCCL met with representatives of the Department of Customer Services yesterday (31 Oct 21) and received assurances about some of the matters raised in our letter.
Significantly the vaccination certificate as part of the Service NSW check in tool (QR code) is just one option to use as entry to hospitality venues and events. For example, vaccinated residents of NSW will be able to show the vaccination certificate on their phone and use paper alternatives. It is envisaged that the venue will only register a tick without any sensitive health information being imparted.
Medical exemptions will be catered for and children under 16 will not require any evidence for entry to venues otherwise accessible by them.
Other assurances were given in regard to certain privacy safeguards including non-retention or collection of data which will only be held on the personal device and the temporary nature of the scheme. Push of data from the Australian Immunisation Register remains of concern, however detailed information about the scheme will be available next week for greater scrutiny ahead of its introduction.
At the National Cabinet meeting on 17 September 2021 all states and territories agreed to include people's COVID-19 vaccination status in their check-in apps, meaning the apps will act as vaccine passports.
Are electoral laws being misused to entrench ALP/LNP duopoly?
The New South Wales Council for Civil Liberties (NSWCCL) is concerned that the two major parties have joined together to limit the ability of smaller political parties to register under electoral laws. In a healthy democracy, established major parties should encourage the registration of smaller parties within reasonable and proportionate limits to enhance the contest of ideas, not seek to maintain their duopoly.Read more