Media coverage: 9News
"The Federal Government would need to regulate this to ensure that appropriate allowances are made for people who have legitimate reasons for not getting vaccinated," he said.
Those reasons could be health, religious or conscientious based, he said.'
The comments come after Qantas boss Alan Joyce told A Current Affair on Monday he foresaw a future where Australians must be COVID-19 vaccinated if they wish to board his airline's international jets.
Media coverage: 7News
Could your boss make you get the COVID-19 vaccine?
The answer is more complicated than you think.
'NSW Council for Civil Liberties spokesperson Stephen Blanks agreed the issue was a complex one.
“[It] depends on the circumstances of the employment and the employee; there is no blanket rule for everyone,” he told 7NEWS.com.au.
“There could be more justification [for a mandatory jab] for staff working in a high-risk environment who have exposure to many members of the public, but there needs to be recognition that some employees may have a legitimate reason for not having the vaccine.
“These may range from religious belief through to personal health reasons, meaning a vaccine is not appropriate,” Blanks said.'
Media coverage: The Echo
'The Drug Supply Prohibition Order Pilot Scheme Bill 2020 [NSW] was recently introduced to parliament, which if passed, would allow a police officer ‘to stop, detain and search a person… who has been convicted of a serious drug offence, without the requirement for a warrant’.
As it’s a pilot scheme, the presumption of guilt and lack of basic civil rights would apply to those living in Bankstown Police Area Command and the Coffs-Clarence, Hunter Valley and Orana Mid-Western Police Districts.
The NSW Law Society told The Guardian that if passed, it could lead to people previously convicted of lower-level drug offences being harassed by police. The NSW Council for Civil Liberties said in their submission that the 10-year period within which police can apply for an order may, ‘have the unintended impact of interfering with rehabilitation efforts’.'
PUBLIC STATEMENT – 9 NOVEMBER 2020
The New South Wales Council for Civil Liberties (NSWCCL) is opposed to the Drug Supply Prohibition Order (DSPO) Pilot Scheme Bill 2020 (the Bill) which provides police with extraordinary powers in circumstances where adequate powers currently exist to search and seize items related to drug activity.
The Second Reading Speech highlights that the purpose of the Bill is to “assist police to gather evidence of drug supply and drug manufacture effectively and efficiently”. The Bill is designed to have a “deterrent effect on a person subject to a DSPO, who may reconsider whether re‑engaging in a lifestyle involving the manufacture or supply of illicit drugs is worth the increased risk of police detection and further conviction”.
The Bill introduces a 2-year pilot scheme enabling police to apply for drug supply prohibition orders in 4 specified local area commands, against a person who is over 18 and has been convicted of “a serious drug offence”.
The orders would allow police to stop, detain and search the person subject to the order and certain vehicles, aircraft or premises, without a warrant. The application may be made by police up to 10 years after the person is convicted of the offence.
The NSWCCL is deeply concerned that the low threshold in relation to the definition of “serious drug offence” operates to cast the net unacceptably wide. Section 5(2) lists offences under the Drug Misuse and Trafficking Act 1985 that qualify as a “serious drug offence”. The list of offences is too broad. For example, it includes section 25(1) (supply a prohibited drug) but excludes trafficable and small quantities. This means the indictable quantity is the threshold. The indictable quantity for many drugs is not very high. For example, the sale of MDMA, for the amount of 1.25g, and amphetamine is 5 grams.
The Bill provides that a Magistrate may make an order if a person is an “eligible person” and if they are likely to engage in the manufacture or supply of a prohibited drug. In deciding whether a person is likely to engage in manufacture or supply, the court may take into account “information that may be adverse to the application for the order, including steps that the eligible person has taken to stop or reduce the risk of the person committing drug-related offences”.
The Bill must be strengthened to ensure that Magistrates must take into account any information adverse to the making of the order and it should also be mandatory that the Magistrate be advised of and take into account any alternative means of obtaining evidence (such as an application for a warrant).
We are strongly of the view that the 10-year period within which police can apply for an order is too long and places people at risk of being subject to these extraordinary powers for a period that is simply unacceptable. We are also concerned that the lengthy period may also have the unintended impact of interfering with rehabilitation efforts.
Although an order can only be made against someone who is 18, a juvenile conviction can still trigger an application for an order once the person turns 18. Juvenile offences should be excluded. The inclusion of juvenile offences renders young people open to breaches of their civil liberties for acts committed when they were children. The consideration of past juvenile offences is contrary to the well-established principle that rehabilitation is paramount when sentencing young people.
The NSWCCL oppose other aspects of the bill which are unacceptably broad, including:
- the powers for items to be seized that are not drug related.
- the power for searches of premises and vehicles in the absence of the owner/controller
- the power to search premises “at which the person resides” and “premises that the police officer reasonably suspects are owned by the person or under the direct control or management of the person”. Searches should only be allowable where police reasonably suspects the premises or vehicles are being used for an unlawful purpose involving the manufacture or supply of a prohibited drug.
The minimum period of the order is 6 months and the person who the order is made against is unable to apply for revocation within 6 months of service 13(8). This minimum period is far too long and inability to apply for revocation unexplained and unjustified.
Other persons affected by the orders
The Bill does not give appropriate consideration to the impact the order may have on third persons. Section 7(5) states that an affidavit accompanying the application should identify persons who may be incidentally affected by the order. Police applying for the order should have a positive duty to investigate and put before the court any person who may be affected by the order and demonstrate to the court that they have engaged in investigations relating to third parties. Police should also be required to indicate the age and any vulnerabilities of third parties who may be affected by the orders.
The NSWCCL suggests a comprehensive list of matters to assist police in identifying the sorts of matters which may be adverse.
Notice and procedural fairness
Under this scheme, the person who is the subject of the order does not have to be present or given notice of the search but is only required to be given a written notice after the search. We oppose the lack of notification and a search being conducted without the person being present.
The ordinary rules of procedural fairness do not apply. The Second Reading speech reasons that lack of a notification, presence or submissions by the person against whom a DSPO is sought is to protect confidential criminal intelligence. However, the protection of confidential criminal intelligence needs to be weighed and balanced with the right of a person to be informed of an application made against them to deprive them of the opportunity to be heard.
If the applications remain without notice and in private, we are of the view that consequences for police should be built into the scheme for applications which do not properly disclose matters adverse to the making of the order, including immediate revocation of the order.
The Bill also provides that there is no entitlement to know the reasons for the decision for making the order. This is unacceptable, anyone who has an order against them should be entitled to know the reason as to why their liberties are infringed upon. Protections can be built in to protect particularly sensitive information.
The NSWCCL supports the requirement that notice be given to an Oversight Commissioner. It is recommended that greater participation for the Oversight Commissioner is provided for including monitoring compliance of the application process, the right to make submissions on the application and monitoring compliance with carrying out the orders.
The Areas where the pilot scheme will operate
We also question the 4 areas which have been nominated as pilot scheme areas: Bankstown, Coffs-Clarence, Hunter Valley and Orana Mid-Western Local Area Commands. It is likely the nominated pilot scheme areas will disproportionately impact indigenous people, marginalised groups and people of low socio-economic status.
The NSWCCL acknowledge the harm that illicit substances have on the lives on individuals and their families and the harm they cause communities. Police currently have the powers necessary to investigate the supply and manufacture of drugs. The extraordinary powers provided by this Bill diminish protections and civil liberties of those subject to the order, and third persons who may also be affected by an order. NSWCCL does not support the enactment of this Bill. If the Bill is to pass, significant amendments must be made, in particular to the length of the orders, the breadth of the criteria of “eligible person”, the factors to be taken into account when making the orders by the court and police obligation to inform the court of adverse impacts of the orders.
See the Bill HERE.
9 November 2020
NSWCCL warmly welcomes the introduction to Parliament of the Climate Change (National Framework for Adaptation and Mitigation) Bill 2020 (“the Bill”) by the independent member for Warringah Zali Steggall.
We are living in a climate emergency. Calling the multifaceted and serious crises a warming planet is precipitating “global warming” or “climate change” no longer does justice to the urgency of our circumstances. As we gradually move out of one global emergency, the COVID-19 pandemic, we should reflect on the value of rapid, high-quality emergency governance in defeating large scale, complex problems facing our societies. We should ask why we have not seen similar quality governance in Australia with respect to the climate emergency. Sadly, Australia’s climate policy has been hopelessly inadequate for many years and out of line with the actions of many of our key allies and trading partners. Our Prime Minister has recently refused to sign up to a net zero emissions target by 2050, despite increasing international isolation on the issue.
At our 2019 Annual General Meeting, NSWCCL recognised, in line with a growing number of human rights bodies, that climate change is a central civil liberties and human rights issue.
Passage of Ms Steggall’s Bill would be a crucial first step in building political consensus and providing stability, transparency and parliamentary scrutiny in the area of climate policy, which will facilitate the introduction of more ambitious proposals by government. The Bill does not dictate any one climate policy to the government. As framework legislation, it recognises that the executive may require flexibility and choice in the formulation and implementation of climate policy. However, if passed, it would represent an expression of the elected Parliament’s intention to only permit the development of reasonable, science-based climate policy. As is abundantly clear from the science, if Australia is to reach its Paris target of limiting warming to 1.5°C and thus play its part in averting the worst consequences of climate change, our government’s policies and decision-making must conduce to the meeting of a target of zero net accounting emissions by around 2050. All States and Territories have zero net emissions by 2050 targets, as do many leading overseas jurisdictions.
NSWCCL stresses that this legislative model alone is insufficient to meet the exigencies of our climate emergency. Our governments can and should be doing more, including aiming for a target of 45% emissions reduction on 2010 levels by 2030, 100% renewable energy by 2030, not supporting any new coal and gas projects, and funding a just transition to a green economy.
Nevertheless, NSWCCL commends Ms Steggall’s Bill as a good start and will participate in the campaign to secure its passage.
To read NSWCCL’s views on the Bill in March of this year, please view our previous statement at: https://www.nswccl.org.au/climate_change_bill_2020.
For a summary of the Bill, click HERE.
 https://www.atse.org.au/news-and-events/article/emissions-targets-are-we-on-track/; https://www.theguardian.com/environment/2020/oct/31/net-zero-what-if-australia-misses-the-moment-on-climate-action; https://www.theguardian.com/environment/2020/nov/08/australia-warned-it-could-be-isolated-over-climate-inaction-after-joe-biden-victory
The right to free speech and the right to openly participate in political debate are rights which must be available to all residents of NSW whether or not they are employed by the Department of Education. NSWCCL is concerned that the proposed changes to the Code of Conduct by the NSW Department of Education (the Department) has the potential to reduce the civil liberties of Departmental Employees through a restriction on their rights to communicate through personal social media channels.
In this submission the NSWCCL has chosen to concentrate on question 2 in the discussion paper:
2. Where should the department set standards in respect to recognising an employee’s choice to engage with social media but ensuring the reputation of the department and public sector?
In the opinion of the NSWCCL any standards regarding the use of social media by Departmental employees should ensure their right to free speech including the right to participate in political discourse, by not going further than absolutely necessary in limiting such rights.
The proposed social media guidelines should be restricted to matters where an employee is conducting illegal behaviour, such as committing criminal offences, through their speech. No further burden on free speech is necessary for the public interest, nor justified in this context.
NSWCCL submission to the Joint Select Committee Inquiry into the Anti-Discrimination Amendment Bill 2020 - 22 August 2020
The NSW Council for Civil Liberties [NSWCCL] considers it is very important to respond in some detail to this Joint Select Committee’s inquiry into the Anti-Discrimination Amendment (Religious Freedoms and Equality) Bill 2020 [the Bill].
The issues encompassed by this Bill – religious freedoms and protection from discrimination on the grounds of religion - are of great significance in a democracy such as ours. They are also extremely complex and potentially deeply contentious issues. Legislation on human rights must always be carefully considered and balanced, and this is especially so in relation to religious rights and protections. If all rights are not considered in a fair and balanced way the outcome is likely to be discriminatory and harmful to some groups and individuals and to over-privilege the rights of others.
** Dr Lesley Lynch, co-convenor of the NSWCCL Civil and Human Rights Action Group appeared at the first public hearing for the Joint Select Committee on the Anti-Discrimination Amendment (Religious Freedoms and Equality) Bill at 2pm on Friday 23rd October, 2020.
2020 NSWCCL AGM
Item 8.3 Policy on Human Rights and Technology
Human Rights and Digital Technology
Australia has experienced an exponential uptake and increased sophistication of surveillance methods, AI informed decision making, and other modern technologies collecting vast amounts of data (Digital Technology). At the same time, laws protecting individuals against breaches of their privacy rights have not kept pace with those technologies. There has been a “drift towards self-regulation in the technology sector, as laws and regulators have not effectively anticipated or responded to new technologies” . While there will always be some degree of regulatory lag with regards to policy design and implementation, capacity-building programs should specifically target policy makers to ensure the development of a policy framework that is remains relevant as technology progresses.
NSWCCL acknowledges that “digital technologies have the potential to facilitate efforts to accelerate human progress, to promote and protect human rights and fundamental freedoms” but also that “the impacts, opportunities and challenges of rapid technological change […] are not fully understood”. In fact, surveys have shown that community trust in new and emerging Digital Technologies has been diminishing, for example, with most Australians concerned about their online privacy.
Safeguards are necessary to ensure that the liberties and rights of Australians are not unreasonably curtailed by Digital Technology. As a society, we need to avoid the possibility that people feel unable to go about their normal business because they are constantly being watched or tracked. Once collected, used and stored by third parties, personal private information becomes increasingly difficult to protect and regulate. Often that personal private information is collected or used in a manner that is without the knowledge, or consent, of the individual.
NSWCCL policy, in the face of the expansion of Digital Technology, includes:
A national strategy on new and emerging Digital Technologies that promotes effective regulation, consistent with Article 22 of the EU General Data Protection Regulation (GDPR).
Australian government policy on Digital Technology has tended towards self-regulation which is also, inevitably, fragmented. The Australian Productivity Commission has called for fundamental, systematic change in the way governments, businesses and individuals handle data. As a starting point, the substance of Article 22 of the GDPR, should be adopted by Australian legislators, as best practice. Article 22 of the GDPR provides for the right not to be subject to a decision based solely on ‘automated processing, including profiling’ which has a legal or significant impact on the individual.
A National Bill of Rights. One of the most significant gaps, from a policy perspective, with regards to the protection of human rights, data collection and AI informed decision making, is the absence of legislated human rights protection, particularly through a national Human Rights Act or charter. As a corollary, international policies and treaties around human rights and Digital Technology protection need to be more effectively implemented.
Implementation of legislative framework with a human-rights centred approach.
Australia needs “greater statutory clarity regarding the ambit of responsibility and consequence of automated decision making”. The overarching framework should provide for Digital Technology being designed and applied around principles of transparency, accountability, responsibility, mitigation of risk, fairness and trust. It should provide for clear and enforceable laws as a main means to ensure and promote an accountable and responsible use of Digital Technology, aiming at fostering innovation while also protecting human rights.
Accountability of institutions for decisions that are made using Digital Technology and liability for the consequences of those decisions.
Exclusion and discrimination can be exacerbated by the “feedback loop of injustice”. For example, if AI is tasked to make a decision it will base its decision on past data, and if a person if affected that is part of a group sharing a characteristic such as race, age, gender or other, it is therefore likely to replicate past imbalances and injustices that that group was involved in.
This problem concerns society defining areas, such as capital distribution (who gets the home loan?), employment (who gets the job?), and criminal justice (who goes to jail?). While the public discussion of the human rights implications of Digital Technology has tended to focus on the right to privacy and non-discrimination, other areas are also engaged, such as the right to equality, the right to work, the right to justice, and the right to health.
Notification to the individual impacted when Digital Technology facilitated decision making occurs.
The Council of Europe, Commissioner of Human Rights, considers that those who have had a decision made about them by a public authority, that is solely or significantly informed by the output of an AI system, should be promptly notified. In the context of public services, especially justice, welfare, and healthcare, the individual user needs to be notified in clear and accessible terms that an AI system will be interacting with them and that there is hasty recourse to a complaints person. Specific information about processing, purpose and the legal basis for processing, should be available to the individual whether that information is retrieved directly, or from other sources.
A Consumer Protection approach to Consent. While consent of the user is a necessary condition for the use and decision-making processes of Digital Technology, it is not sufficient. A user should not be able to consent to waive rights under consumer law; laws which provide that the data controller must do certain specified things. Where consent is required and sought, that consent needs to be express, voluntary, specific and unambiguous; not bundled consent, nor opt out. Any changes in use of information collected or stored should prompt a requirement for renewed express consent.
Reform to more easily assess the lawfulness of decision-making by Digital Technology. Accessing technical information used in decision-making or having open source AI are methods for doing so.
Easily accessed complaints and independent appeal processes, and remedies for the benefit of the adversely affected individual user.
Digital technologies are still developing and high error margins need to be accounted for. At any stage, a user affected by automated decision making should have the right to human intervention. The appeal system(s) that will need to be established must be easily and cheaply accessible, so that those in vulnerable positions have the chance to contest contentious decisions.
A moratorium on the use of the technology should be implemented in any situation where the use of a technology in a specific situation is not regulated clearly enough by the policy and/or legislative framework.
Digital Technology needs to be continuously assessed for accuracy and reliability, as software behind, for example, facial recognition can still show high error margins and substantial system bias. Misidentification and bias affecting citizens have led to various city and state governments, international organisations and software companies, to either impose or call for a moratorium on the technology’s use, until its functionality and the laws around it meet certain conditions.
The establishment of a Digital Regulatory Body (DRB) tasked with developing policies around the design and application of big data, AI informed decision-making systems and advanced surveillance technologies. Its powers including:
a) Enforcement of policies. The DRB should be tasked with supervising compliance with data protection regulations by government and the private sector.  The powers invested in the body, like European models, should include investigation and access to premises and data processing equipment, for the purposes of compliance with regulations. There should be authority to impose a fine and/or a ban on processing.
b) Regular auditing of public and private organisations’ systems to ensure high rates of policy compliance. Regular auditing also serves to detect potential bias in Digital Technologies. The DRB, given the appropriate expertise, should be able to keep intellectual property confidential and yet recognise where algorithms reinforce social differences and discrimination.
c) Advocacy, encouraging laws and practices around technologies to be human rights compliant and used for the public good. Soft measures could take the shape of offering targeted education and training for decision makers and leaders, in the Australian private and public institutions, to build capacity around existing and new laws in the context of new technologies.
d) Fostering innovation and technological progress. In order to achieve both human rights compliance and technological innovation and progress, the regulatory body could be tasked with the implementation of ‘regulatory sandboxes’. In these regulatory sandboxes “new products or services can be tested in live market conditions but with reduced regulatory or licensing requirements and exemption from legal liability, and with access to expert advice and feedback”.
e) Research into making AI more privacy friendly. Privacy friendly AI systems can more easily comply with regulations, use anonymisation techniques and explain how data is processed.
A limited statutory cause of action to sue for serious breach of privacy, where there is a reasonable expectation of privacy. The existing privacy legislation at Commonwealth and State levels does not provide protection, or remedy, for many kinds of invasion of personal privacy. Any cause of action needs to be broadly formulated to capture future forms of privacy infringement.
In 2019, the Australian Competition and Consumer Commission recommended that a new statutory cause of action be created to cover serious invasions of privacy with the aim to reduce the “bargaining power imbalance” between individuals and digital platforms.
That the proposed policy on Human Rights and Technology be adopted.
Moved at the NSWCCL AGM October 21st 2020 by: Michelle Falstein
Seconded by: Stephen Blanks
 Farthing, S., Howell, J., Lecchi, K., Paleologos, Z., Saintilan, P. and Santow, E., 2019. Human Rights and Technology: Discussion Paper. <https://humanrights.gov.au/sites/default/files/document/publication/techrights_2019_discussionpaper_0.pdf> [Accessed 13 September 2020] at p.38
 UN Human Rights Council, 2019. New and emerging digital technologies and human rights: 41st session. [online] Available at: <https://documents-dds-ny.un.org/doc/UNDOC/LTD/G19/208/64/PDF/G1920864.pdf?OpenElement> [Accessed 13 September 2020] at p.2
 Goggin, G., Vromen, A., Weatherall, K., Martin, F., Webb, A., Sunman, L., & Bailo, F. (2017) Digital Rights in Australia Departments of Media Communications, and Government and International Relations, Faculty of Arts and Social Sciences, and the University of Sydney Law School, University of Sydney. <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3090774 >accessed 25 Feb 2020
 Australian Productivity Commission (2017) Data Availability and Use Report, p. 12 in Goggin, G., Vromen, A., Weatherall, K., Martin, F., Webb, A., Sunman, L., & Bailo, F. (2017) Digital Rights in Australia Departments of Media Communications, and Government and International Relations, Faculty of Arts and Social Sciences, and the University of Sydney Law School, University of Sydney. pp21-22 <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3090774 >accessed 25 Feb 2020
 Murray, A., 2019. Legal technology: Computer says no …but then what. The Proctor, 39(8), 48-49.
 Eubanks, V., 2017. Automating inequality: How high-tech tools profile, police, and punish the poor/Virginia Eubanks. New York, NY: St. Martin's Press.
 Council of Europe Commissioner of Human Rights (May 2019) Unboxing Artificial Intelligence: 10to protect Human Rights https://rm.coe.int/unboxing-artificial-intelligence-10-steps-to-protect-human-rights-reco/1680946e64; Also Art 13 GDPR
 The Norwegian Data Protection Authority (January 2018) Artificial Intelligence and privacy Datatilsynet, p.29
 Art 22 GDPR
 Conger, K., Fausset, R. and Kovaleski, S. F., 2019. San Francisco Bans Facial Recognition Technology. The New York Times. [online] 14 May. Available at: <https://www.nytimes.com/2019/05/14/us/facial-recognition-ban-san-francisco.html> [Accessed 14 September 2020]; Kelion, L., 2019. MPs call for halt to police's use of live facial recognition. BBC. [online] 18 Jul. Available at: <https://www.bbc.com/news/technology-49030595> [Accessed 14 September 2020]; Larson, N., 2020. UN urges 'moratorium' on facial recognition tech use in protests. [e-book]: AFP. <https://news.yahoo.com/un-urges-moratorium-facial-recognition-tech-protests-142542401.html> [Accessed 26 June 2020].
 Shaping Europe’s digital future -Report/Study (8 April 2019) Ethics guidelines for trustworthy AI <https://ec.europa.eu/digital-single-market/en/news/ethics-guidelines-trustworthy-ai>
 The Norwegian Data Protection Authority op.cit. p.23
 Op.cit. Farthing, et al., 2019 p.118
 The Norwegian Data Protection Authority op.cit. p.28
 Witzleb, Normann (2011) A statutory cause of action for privacy? A critical appraisal of three recent Australian law reform proposals 19 Torts Law Journal 104-134 DOI: 10.13140/2.1.3159.1684
 Australian Competition and Consumer Commission (June 2019) Digital Platforms Inquiry- Final Report <https://www.accc.gov.au/system/files/Digital%20platforms%20inquiry%20-%20final%20report.pdf>
2020 NSWCCL AGM
Item 9.2 Policy on ICAC
NSWCCL strongly affirms the crucial role of the Independent Commission Against Corruption in NSW. As Richard Ackland writes, the episode currently playing out with respect to Daryl Maguire, and incidentally, Gladys Berejiklian, is “a timely reminder of the disinfecting sunlight that ICAC is capable of shining”. To quote our President, “while the present proceedings may not encourage federal parliamentarians to move forward more speedily with a federal ICAC, they are certainly encouraging the electors to push for one.”
NSWCCL deplores the recent cuts to ICAC’s funding, which Chief Commissioner Peter Hall QC warned in 2019, “have an immediate and serious effect on the commission’s frontline services, and therefore its ability to fight corruption.” ICAC should be funded independently of the usual funding process for government agencies; it is not like any other government agency. Such changes would help temper the influence which the Executive can potentially wield to hinder the fight against corruption in NSW.
That the proposed policy on ICAC be adopted.
Moved at the NSWCCL AGM October 21st 2020 by: Jared Wilk
2020 NSWCCL AGM
Item 8.2 Policy on visa cancellation on character grounds.
Section 501 of the Migration Act enables the Minister for Home Affairs or his delegates to cancel the visa or to refuse a visa of any person who is decreed to have failed what is termed ‘the character test’. The grounds on which this can be done are many: they include inter alia serving a total of 12 months’ imprisonment; conviction for any offence, no matter how inconsequential, while in immigration detention; being a person who has been or is a member of a group or organisation, or has had or has an association with a group, organisation or person, and that group, organisation or person has been or is involved in criminal conduct; being a person whose criminal or general conduct is such that the person is not of good character; or having been ordered by a court to participate in a drug rehabilitation scheme. If a court has found a person guilty of an offence against a child, or found a charge against the person proved for an offence against a child, whatever the penalty or even if the person was discharged without a conviction, they fail the character test. Persons can also be found to have failed the character test if there is only a risk that that they may engage in criminal conduct, vilify a section of the Australian community, or incite discord in a section of that community. Harassment, which is defined as including threats to the property of a person, also constitutes a failure of the character test.
Persons are taken to have been sentenced to twelve months of imprisonment if they have received sentences for separate crimes which add up to twelve months or more, even when a court has ordered that two or more sentences be served concurrently.
If the Minister suspects one of these conditions apply to a visa holder, he may cancel the person’s visa, and the rules of natural justice apply. Such decisions are subject to review by the Administrative Appeals Tribunal. But the Minister is able to overrule the Tribunal.
But if he thinks it is in the national interest to cancel the visa as well, the rules of natural justice do not apply. But under subsection 501 (3A), if the Minister is satisfied (as opposed to suspecting) that the character test has been failed, he must cancel the visa, and the rules of natural justice do not apply.
Section 500A enables the Minister to refuse a Safe Haven visa on similar grounds. So refugees are explicitly included.
Under section 499 of the Act, the Minister the Minister may give written directions to a person or body having functions or powers under this Act if the directions are about the performance of those functions or the exercise of those powers.
Under section 116, visas may be cancelled where they have been granted on the basis of misinformation; but also where the presence of its holder in Australia is or may be, or would or might be, a risk to the health, safety or good order of the Australian community or a segment of the Australian community; or the health or safety of an individual or individuals.
In many respects, this legislation is unjust. A person who has served their time after a criminal conviction should not be subjected to a second penalty or other forms of harm; and though the High Court has found that having a visa cancelled and subsequent detention do not count as a punishment, the effect on the person is the same as if it was. A person who has reformed while in prison should not be treated as a risk to the Australian community. A person who has been found by a parole board not to be a risk should not be treated as though they are such a risk. It is unjust to deprive a family of a close member on whom they depend for financial or emotional support. And while there is a case for sending persons who were criminals before they entered Australia back to the countries where they became criminals, it is not just to send back people who became criminals during their time in Australia.
The ability of the Minister to overrule the AAT is contrary to the rule of law, and should be abolished.