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Local NSW fishermen are being prosecuted under State law contrary to their Native Title rights

Members of the Aboriginal community who have a right to fish under the Native Title Act 1993 are being prosecuted under the Fisheries Management Act 1994 (NSW) (FMA) contrary to those rights. Mounting a native title defence is both time consuming and expensive, meaning that a number of Aboriginal men have been incarcerated as they have been unable to defend themselves.

A legislative amendment that would resolve this situation was passed 11 years ago, but hasn't yet commenced. NSWCCL has written to the NSW Minister for Agriculture to urge him to immediately rectify this situation - rights that require a costly legal defence to enjoy are not worth the paper on which they're written.

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NSW inquiry rejects expert advice

Four academics writing in The Conversation criticised Mark Latham's report into his own bill saying that the "inquiry ignores scientific research in supporting changes to the Education Act. These changes are likely to add to the risks of harm that transgender and gender-diverse young people face".

The piece quoted our Tweet stream calling out the inquiry and commending the minority report rather than the majority.

Full article: NSW inquiry rejects expert advice on Parental Rights Bill, and it will cause students to suffer The Conversation 14 Sept '21

 

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NSWCCL calls on Regulation Committee to review confusing Public Health Orders

Public Health Orders to manage the COVID-19 pandemic are being made and amended on the fly. 

Given the speed at which they are drafted, the constant amendment and possibly the lack of care taken in their drafting, they have proven to be incredibly confusing. 

They are almost impossible to understand - new evidence of the confusion that the Orders are causing emerges every day. Is sitting on a park bench or a beach eating something considered outdoor recreation? Is light walking a good enough reason to take one's mask off?

NSWCCL asks: how can the rule of law prevail where its subjects cannot ascertain the relevant law?

Lack of oversight

These Orders have a significant impact on our individual rights and liberties, effectively introduce serious offences, and are controlling the lives of millions of NSW residents - they should be subject to intense parliamentary scrutiny.

However, that isn't happening. The Orders are made by the Health Minister under section 7 of the Public Health Act 2010 and are effective immediately, with no review required. The checks and balances that usually apply to legislation are not in place. 

The Regulation Committee 

Since 2017, NSW's Regulation Committee has had a power to review "any instruments of a legislative nature regardless of its form, including the policy or substantive content of the instrument". Since last year, it has had the power to self refer. 

NSWCCL has written to the Committee urging it to take on the scrutiny and review of the Orders, whether that is through the establishment of an inquiry, public or private communications with government or otherwise.

More information: Read our letter to the Regulation Committee

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It's not too late to release refugees over COVID concerns

In the light of news that at least one guard has tested positive, NSWCCL is renewing its calls for refugees to be released from detention immediately.

Last week news broke that a guard at the Melbourne Immigration Transit Accommodation (MITA),  had tested positive for COVID-19 — the Delta variant.  MITA is one of the larger detention centres for asylum seekers and non-citizens who have had their visas cancelled under the character test provisions of the Migration Act.  

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Sydney social housing towers residents protest 'overpolicing'

SBS News covered Common Ground Towers residents' protest against 'overpolicing' on Saturday after revelations that officers were searching packages and confiscating alcohol under the direction of NSW Health.

The coverage quoted the open letter we signed with Amnesty International, Legal Observers NSW, Tenants Union NSW, Shelter NSW and Melbourne Activist Legal Support condemning "the inappropriate policing and unlawful searches imposed on residents of Common Ground in Camperdown".

Read the full article:  Sydney social housing towers residents protest 'overpolicing' SBS News 11 Sept '21

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A Human Rights Act for Australia

NSWCCL wrote to the Leader of the Opposition Anthony Albanese and the Shadow Attorney General Mark Dreyfus to support the commitment in Labor’s national platform to review the Human Rights Framework established by previous Labor governments and consider whether it could be enhanced through a statutory charter of human rights or other similar instrument. We called for a commitment to that review in the first hundred days of the next Labor government as a catalyst to reform Australia’s ethical infrastructure.

More information: read our letter

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Common Ground: open letter condemning inappropriate policing & unlawful searches

NSWCCL joins Amnesty International, LONSW, Shelter and TUNSW in condemning the inappropriate policing and unlawful searches imposed on residents of Common Ground in Camperdown. We stand in solidarity with the residents in lockdown. Below is our joint open letter - also published on the Legal Observers NSW website

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Latham Inquiry makes a mockery of the committee process

NSWCCL condemns the report of the NSW Legislative Council inquiry into Mark Latham and One Nation’s so-called ‘Parental Rights’ Bill (the Education Legislation Amendment (Parental Rights) Bill 2020) released on the 7th of September. NSWCCL made a submission and gave oral evidence to the inquiry. 

At the time, we said “NSWCCL considers that the Bill should not be passed. Not a single aspect of the Bill improves upon the law as it currently stands in NSW. Moreover, the Bill is an appalling contribution to public debate and education policy in this State.… The Bill:

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The 'National Cabinet' should not be above scrutiny

On Thursday, in a blatant and cynical attempt to avoid transparency, the Government introduced a Bill that gives National Cabinet the status of a 'Cabinet' - meaning that the PMO can now keep its deliberations secret. This nullifies a recent finding by the Administrative Appeals Tribunal (AAT) that the ‘National Cabinet’ was not a cabinet in any real sense of the word, so key documents should be released.

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Has pandemic policing gone too far?

Hosted by Julian Morrow, the Round Table on this week's Sunday Extra considered the hard questions about police powers during COVID. Highly restrictive health orders have become part of life over the past 18 months - with the focus now shifting to vaccines, have police powers gone too far? How much of the restrictions will and should be wound back?

Our President Pauline Wright joined Dr Thalia Anthony and Professor Marc Stears on this panel discussion.

Listen here: Sunday Extra 5 Sept '21 ABC Radio National from 2:26 

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SA facial recognition app trial should not go ahead without safeguards

The Guardian reports on an app being trialled in South Australia that uses facial recognition and geolocation to enforce home quarantine during the Covid-19 pandemic.

Our Secretary Michelle Falstein told the Guardian that the lack of primary legislation underpinning apps of this kind has made it difficult to assess how privacy concerns are managed, how long data is being kept, who it’s shared with, and how it is stored.

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Continuing detention scheme for terrorist offenders 'not compatible with human rights law'

NSWCCL and the Sydney Institute of Criminology have made a joint submission expressing concern about the Commonwealth’s continuing detention scheme for terrorist offenders and its lack of compatibility with human rights law and fundamental principles of criminal law.

We argue that serious consideration should be given as to whether the scheme is necessary. If the scheme is to continue, we argue that the scheme should be amended in substantial ways to enhance (to the extent possible) its compatibility with human rights law.

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Voluntary Assisted Dying - it's time, NSW

Nobody should have to suffer unbearable pain and loss of control and dignity at the end of their lives - but that's exactly what happens in NSW. We need to change that.

There is overwhelming support for voluntary assisted dying (VAD) in Australia. Victoria, Western Australia, Tasmania and South Australia have already passed VAD laws and a VAD bill is expected to pass in Queensland in September.

Independent MP Alex Greenwich is due to introduce a VAD Bill into NSW Parliament in 2021 - we need to make sure it's passed.

How can I help?

NSWCCL is part of the Dying with Dignity alliance - you can help the campaign by:

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We face a health crisis not a crime wave

The Coast Community News examines the Government's COVID roadmap out of lockdown and talks to our President Pauline Wright about the current restrictions.

“While this deadly pandemic is still around," she said, "we do need to accept there are going to be some limits and we’re going to have to show that we have a licence to go about our business.

However, Wright said she was highly concerned over the range of ‘Stay at Home’ measures brought in by the NSW Government.

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Are vaccine entry requirements discriminatory?

The ABC's James Valentine considers the likelihood of Australia opening up once the vaccine rates climb high enough, and examines what privileges for the vaccinated will look like.

He talks to our President Pauline Wright (from 7 min), asking whether it's discrimination if a restaurant is open only to the vaccinated.

Pauline describes this as discrimination, but not unreasonable discrimination.

"We are used to certain kinds of discrimination being fine," she says. "For example, you would say only people who have a driver's licence can drive a car. That’s potentially discriminatory against people who don’t have a drivers licence, but it’s perfectly reasonable.

And that’s really what we’re talking about here. Our rights and freedoms aren’t absolute - we do have to take our rights and freedoms and compare them to other people’s rights and freedoms and balance that. So if I exercise my right and it has a terrible impact on your rights, then it’s not reasonable for me to be exercising that right in that way.”

For more: Afternoons with James ValentineABC Radio 30 Aug '21

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The tipping point: Are vaccine passports our ticket to ride?

The Law Society Journal asks: 'a ticket to freedom or a rubber-stamped restriction of our rights? As the debate rages about mandating vaccinations or incentivising those who get the jab done with exemptions from border closures and lockdowns, whose side is the law on?'

President Pauline Wright says: “Governments across Australia have the right under our Constitution to impose conditions about who passes their borders, including imposing health restrictions
and proof of vaccination.”

Full article: The tipping point: Are vaccine passports our ticket to ride? Law Society Journal 30 Sept '21

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Cannabis, Covid-19 and Drug Supply

This article by Lamont Law, published on Lexology, begins with the case of a NSW truck driver who smuggled 145kg of cannabis across the QLD/NSW border.

It cites an Australian institute of Criminology report which found that:

  • regular cannabis users reported using cannabis significantly more often than before the pandemic
  • people who had changes in their employment, financial or living situation or mental health were more likely to increase cannabis use
  • many users reported increased prices and decreasing numbers of dealers in Brisbane, Queensland

It considers sentencing for drug offences, planned reforms and our statement condemning a Bill that would provide police with extraordinary powers in circumstances where adequate powers currently exist to search and seize items related to drug activity.

Read the full article: Cannabis, Covid-19 and Drug Supply Lexology 27 Aug '21

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Detainees in 'punishment cell conditions' for quarantine

NSWCCL is increasingly concerned about the impact on detainees in our immigration detention facilities of current quarantine arrangements. In particular, the treatment of people who return to detention centres after medical appointments is unacceptable.

  • They are confined in small rooms for a fortnight.
  • There is nothing in the room except a bed, an open toilet and a wash basin.
  • The windows are tinted, so detainees cannot see out.
  • There is no access to personal possessions.
  • No reading material is available - not even a Bible, Torah or Koran.
  • There's no exercise outside of the room.
  • A change of under clothes may not be available for several days. 
  • There is a buzzer to call for attention, but people may have to wait for a lengthy period for a response. 
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Landmark legal victory on climate change

In a welcome landmark victory in the NSW Land and Environment Court today, the Environmental Protection Agency (EPA) has been ordered to take action on climate change. This is the first time a government organisation has been compelled to act on climate change in accordance with a statutory duty in Australia.

The court found that the EPA's statutory duties include a duty to develop objectives, guidelines and policies to ensure the protection of the environment from climate change, and that it had not fulfilled its duty to protect the state’s environment. 

It may come as a surprise to many that the EPA currently does not have specific policies in place to mitigate greenhouse gas pollution, one of the most dangerous forms of pollution in the long term.

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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. 

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