The New South Wales Council for Civil Liberties (NSWCCL) welcomes the opportunity to make submissions to the Senate Standing Committee for the Scrutiny of Delegated Legislation (Committee) with respect to its Inquiry concerning the exemption of delegated legislation from parliamentary oversight (Inquiry).
NSWCCL commends the Committee’s resolve to meet regularly during the recent period of parliamentary adjournment to ensure its continued scrutiny of all delegated legislation, particularly disallowable executive-made COVID-19 instruments. There are significant constraints on the capacity of the Committee to scrutinise particular legislative instruments exempt from parliamentary disallowance, but it is nonetheless performing a very valuable role in flagging ‘framework’ issues.
The Australian government’s response to the COVID-19 crisis has been enabled by the provision of extraordinary powers to Executive Government and Government agencies. This has been achieved largely through the mechanism of determinations under the expansive human biosecurity provisions of the Biosecurity Act 2015 (Cth). As of 6 July 2020, there were 199 specific COVID-19 ‘instruments’ and, of greatest concern, at least 42 of these are not disallowable, denying the Committee the ability to scrutinise them.
The Committee is empowered to scrutinise delegated legislation subject to parliamentary oversight against its 12 technical scrutiny principles (Senate Standing Order 23). These principles include whether the legislation unduly trespasses on personal rights and liberties. However, many of the determinations exempt from parliamentary disallowance are having a significant impact on individual rights and liberties, effectively contain serious offences and impose obligations to do or desist from certain activities. As we understand it, the Committee has no power to scrutinise whether particular pieces of delegated legislation should in fact be disallowable under the current standing orders.
The NSWCCL submission makes 7 recommendations to the Standing Committee.
 Scrutiny of COVID-19 instruments, List of COVID-19 related delegated legislation, Parliament of Australia <https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Scrutiny_of_Delegated_Legislation/Scrutiny_of_COVID-19_instruments>
10th July 2020
NSWCCL has concerns regarding claims that a critically ill man from the New South Wales South Coast has twice been denied an exemption from undergoing hotel quarantine in Sydney, despite medical advice he self-isolate at home.
The ABC reported (8th July) that Stephen Evans, diagnosed with stage four oesophageal cancer in 2018, recently returned from Germany where he had a highly specialised lung procedure. NSW Health has twice refused Mr Evans’ request to self-isolate at home, stating that personal health circumstances must be balanced with ‘the requirement to implement the Public Health (COVID-19 Air Transportation Quarantine) Order 2020.’
The Orders allow for NSW Health and/or the Health Minister, to grant an exemption to permit self-isolation at home under strict conditions.
NSWCCL acknowledges the importance of adherence to the Public Health Orders relating to COVID-19 containment efforts. However, there must be an ability to protect the wider population, at the same time as catering for those in our community with particular medical needs and requirements. In the spirit of protecting the general public under the Order, we must not lose the capacity to protect individuals.
Mr Evans’ oncologist and another of his doctors have written letters in support of an exemption from hotel quarantine, outlining their patient’s specific conditions and requirements, including a customised bed and strict dietary requirements. The request specified that ‘Without doubt, it is in Stephen's medical interests to be self-isolating at his home… in order to be in proximity to his supports and local medical team, and to be distanced from others who may be at risk of COVID-19 infection.’
The doctors’ letters reference the medical benefits of Stephen being granted an exemption and their faith in his ability to fulfil requirements made of him, were he to be granted permission to serve the remainder of the compulsory quarantine period in home isolation.
In regard to granting exemptions, where circumstances permit, NSWCCL supports an individualised, compassionate approach, particularly in regard to someone such as Mr Evans, who is already suffering serious health complications and a medical condition that is not communicable to others.
NSWCCL supports urgent requests for further consideration to be given to Mr Evans’ circumstances and specialised medical needs. Mr Evans has a right to seek positive health outcomes in a way that doesn’t endanger others and a solution is available that satisfies the requests and advice from his doctors while protecting the broader community.
Michelle Falstein - Secretary, NSW Council for Civil Liberties
M: 0412 980 540
NSWCCL made a detailed submission to the Senate Select Committee on COVID-19 in June. We lobbied for the formation of this important Committee as a way of providing otherwise absent parliamentary scrutiny of the Government’s huge response to the COVID crisis in the disturbing absence of regular parliamentary sittings.
We are pleased that the Committee, which has wide terms of reference, began its work immediately on its formation both by calling for this Inquiry and initiating public hearings – in the first month largely with Government agencies and ministers. The chair of the Committee made some promising commitments in her opening statements for the first public hearing:
This committee is a key vehicle to provide accountability, transparency and scrutiny of the Australian government's response to the pandemic for the Australian people.
This is not your typical Senate committee. We will demand a lot of witnesses in terms of a cooperative approach that is based on working together in the national interest to ensure all aspects of our response are the best they can be. Political grandstanding will be kept to a minimum. (Senator Gallagher 23 April 2020)
There are already disturbing signs that some ministers and key agencies may not be as open in the provision of information to the Committee as is necessary if it is to fulfil its scrutiny and accountability roles.
Our submission focussed on 4 key areas:
- the fairness and inclusiveness of emergency support programs;
- the need to shape the Australian economy post-COVID towards the creation of a fairer, more just and environmentally sustainable society;
- ensuring the extraordinary powers given to ministers and agencies to restrict Australians’ normal freedoms and rights are necessary and proportionate for the protection of public health and safety, and that we have a process to ensure they will be repealed when no longer necessary;
- the enhanced imperative to put in place governance structures an to effectively scrutinise the integrity of the allocation of the vast public resources that will be expended in response to and in the aftermath of the COVID emergency.
NSWCCL would like to speak further to these arguments when the bill is considered by the Committee.
This bill should be rejected.
If the bill is to proceed, it should limit the general power to search for and seize things to those which are intrinsically harmful, such as guns, knives and unprescribed narcotics. It should stipulate that items that do not present inherent risks to safety and security should only be prohibited to specified individuals where there is evidence that the person has used or is reasonably likely to use the item in a manner that presents clear risks to safety or security, and where those risks cannot be managed in a less restrictive way.
If the bill is to proceed, dogs should not be able to be used for searches in immigration detention centres.
Last month, 23 June 2020, three members of the NSWCCL Committee, President Nicholas Cowdery AO, QC, Vice-President Dr. Eugene Schofield-Georgeson and committee member Jared Wilk (co-Convenor of Human Rights and Civil Liberties Action Group), met with NSW Commissioner for Police Mick Fuller and Deputy Commissioner Jeff Loy. Law and policy issues relating to strip searching, drugs, protests and policing of Indigenous people were discussed.
The NSWCCL is grateful that the Commissioner and his deputy were willing to engage in meaningful and open dialogue with us. We consider this meeting and the willingness of the Commissioner to engage in future dialogue to be a positive development and an opportunity for constructive discussion in relation to the issues which are important to the Council’s principles and values.
We will continue to advocate strongly for improvements and reform in relation to law, policy and internal policies and guidelines which are relevant to policing and to work with the community to strengthen and protect civil liberties and human rights in NSW.
NSWCCL has written to a number of Senators, members of the Legal and Constitutional Legislation Committee, regarding the inquiry into the Migration Amendment (Prohibiting Items in Detention Facilities) Bill 2020.
The Refugee Action Collective of Victoria (RACV) has proposed that the Legal and Constitutional Committee ask the Department of Home Affairs a large number of questions about matters of fact before they meet on July 3.
Although the New South Wales Council for Civil Liberties believes that there are strong grounds for rejecting the Bill outright that are for the most part independent of the matters that the RACV raises, we nevertheless urge you to do as the RACV requests.
Failure to present relevant facts until parliamentary committee hearings are underway, or by taking questions on notice, till after those hearings are complete, prevents transparency, and betrays a lack of commitment to democracy.
In addition to the question the RACV ask, NSWCCL requested the Senators to also ask:
How many landline telephones are available in each compound or separate section of each detention facility? For what hours are they available? And how many detainees are there in each of those facilities?
NSWCCL made a submission to Legal and Constitutional Committee inquiry into the Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2020, recommending that the Bill be rejected.
Media coverage: 7News
As individual cities such as Boston and San Francisco in the United States are banning the use of facial recognition technology as part of the #BLM response, 7-Eleven in Australia has launched the technology across all of its 700 Australian stores.
The convenience store chain will use the facial recognition software within its ‘Rate It’ customer service tablet, and “not for any other purpose”.
“The use of facial recognition within the Rate It tablet is to ensure that the feedback is accurate and valid, and given customer feedback is so important to us we don’t want the system being ‘gamed’.
It’s an assurance that doesn’t sit well with Stephen Blanks from the NSW Council for Civil Liberties.
“This kind of information gathering should be against the law. It’s certainly against good privacy practice and principles.”
Blanks said collecting the data of people trying to provide feedback made little sense.
“They are creating an incentive not to use the feedback tablet – which is contrary to what they’re wanting to achieve.”
7NEWS.com.au understands that an element of the software’s facial recognition is to discourage 7-Eleven staff from self-rating during a shift.
“That’s not an adequate justification for gathering the information,” Blanks said.
In a joint statement seven legal and human rights groups have condemned the approach of many Australian governments to recent Black Lives Matter and refugee rights protests, stating it is inconsistent with our democratic rights and freedoms.
The legal right to protest is fundamental to our democracy. Protests hold governments to account and make our country better. While the powerful few are able to write cheques or call their friends in high places, protests are how the invisible or ignored can become seen and heard by government. Only after tireless, sustained protest did Aboriginal and Torres Strait Islander people win the right to vote, did LGBT+ people achieve marriage equality, and did unions secure the eight hour work day.
Right now, the right to protest is vital for minority groups and supporters who continue to rally against state violence and injustice. Historically, overturning injustice of this kind requires incredible public momentum and visibility, which can only be sustained through protest. Since colonisation, Aboriginal and Torres Strait Islander Peoples have fearlessly fought for an end to police violence, discriminatory laws and the structural racism that locks them out of justice. The pressure is building on governments here in Australia to finally act on what First Nations people have been calling on for decades: an end to Black deaths in custody and an end to police violence.
Media coverage: NineNews, Sydney Morning Herald
NSWCCL President and former NSW DDP, Nicholas Cowdery AO QC, joins 29 prominent Australians as signatories to an open letter coordinated by The Australia Institute, calling for truth in political advertising laws that are nationally consistent, constitutional and uphold freedom of speech.
New polling by The Australia Institute released in conjunction with the open letter shows nine in 10 Australians (89%) say Australia should pass truth in political advertising laws.
Signatories to the open letter include former political party leaders and politicians, Dr John Hewson, Cheryl Kernot and Michael Beahan; former Supreme Court judges, The Hon Anthony Whealy QC, The Hon Paul Stein AM QC and The Hon David Harper AM QC, as well as barristers, community leaders, business people and other prominent Australians.
'Australians want advertising to be truthful and transparent. They expect the media to self-regulate, and want laws that would penalise misleading and deceptive political ads with fines, forced retractions or losing public funding. The lack of truth in political advertising regulation is leading to declining public trust in government, politicians and parliament.
Enough is enough: we need truth in political advertising before the next election.
Political advertisements that are deceptive and misleading interfere with the public’s ability to make informed decisions.
We need truth in political advertising laws that are nationally consistent, constitutional and uphold freedom of speech.'
Refugee Week June 14 - June 20, is Australia’s peak annual activity to raise awareness about the issues affecting refugees and celebrate the positive contributions made by refugees to Australian society. Originally celebrated in 1986, Refugee Week coincides with World Refugee Day (20 June).
Refugee Week provides a platform where positive images of refugees can be promoted in order to create a culture of welcome throughout the country. The ultimate aim of the celebration is to create better understanding between different communities and to encourage successful integration enabling refugees to live in safety and to continue making a valuable contribution to Australia.
The aims of Refugee Week are:
- to educate the Australian public about who refugees are and why they have come to Australia;
- to help people understand the many challenges refugees face coming to Australia;
- to celebrate the contribution refugees make to our community;
to focus on how the community can provide a safe and welcoming environment for refugees;
- for community groups and individuals to do something positive for refugees, asylum seekers and displaced people, within Australia but also around the world; and
- for service providers to reflect on whether they are providing the best possible services to refugees.
Refugee Week is a unique opportunity for us all to experience and celebrate the rich diversity of refugee communities through theatre, music, dance, film and other events which take place all over Australia and highlight the aims of the Week, as outlined above. Refugee Week is an umbrella participatory festival which allows a wide range of refugee community organisations, voluntary and statutory organisations, local councils, schools, student groups and faith-based organisations to host events during the week.
Refugee Week aims to provide an important opportunity for asylum seekers and refugees to be seen, listened to and valued.
In light of the lack of Federally funded income support for those on temporary visas we encourage our members and supporters to contribute to the work done by organisations providing resources and services for refugees and asylum seekers.
- Founder of the Refugee Week Initiative, the Refugee Council of Australia, is a small, not-for-profit organisation and relies on public financial support to continue its vital work in research, education and advocacy.
- Bridge for Asylum Seekers Foundation
- Asylum Seekers Foundation
- Asylum Seekers Centre
Refugee Week hashtags - #RefugeeWeek #YearOfWelcome
Click on an image below to learn about these refugee's stories.