NSWCCL News

Statement: Fees increase on visa matters

25 February 2021 

PUBLIC STATEMENT

Asylum seekers who are denied visas by Mr. Dutton, the Minister for Home Affairs, will now face fees of $3,330 to appeal to the Federal Circuit Court to have his decisions reviewed and overturned.  This is a clear, deliberate and unconscionable action by the Morrison Government to deny asylum seekers access to the Courts and to justice.  

The Senate yesterday debated a motion by Senator Stirling Griff to overturn the decision, but although the ALP, the Greens, and Senators Rex Patrick and Jacqui Lambie supported the motion, that was one vote short of the number needed to carry it.  

Mr. Dutton does not always get things right.  As a consequence of this decision, some asylum seekers will be detained in prison-like conditions for years, or, worse, sent back to countries from which they fled in fear for their lives, and in some cases, the lives of their children.

The fee hike is a 380% increase from $690 to $3,330 and applies only to migration matters. Other non-corporate filing fees will remain below $1,000. It uniquely targets people challenging migration decisions and seeking asylum and, because these astronomical fees will be out of reach for many within that group, means the effective denial of justice to some of the most vulnerable people coming before the justice system in Australia.


Enquires and/or for comment please contact:

NSWCCL President Pauline Wright 0418 292 656, or
Asylum Seeker & Refugee Action Group Co-convenor Dr Martin Bibby 0415 511 617

 

 

 

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NSWCCL on unprecedented new powers for law enforcement

Media coverage: Innovation Aus

The government-funded cybersecurity research centre has thrown its support behind the proposed “extraordinary” new hacking powers for the Australian Federal Police, its position that is at odds with human rights, civil liberties and digital rights groups, as well as a group of Senators who have all raised significant concerns about the new laws.

In a submission to government, the Cyber Security Cooperative Research Centre (CSCRC) said the Identify and Disrupt Bill, which hands sweeping new powers to the AFP and the Australian Crime and Intelligence Commission (ACIC) to hack into the devices and networks of suspected criminals, is proportionate, appropriate and safe.

The NSWCCL said that the new powers are “next in an accelerating wave, strengthening the powers of the state without any humility about the cumulative erosion of democratic freedoms they entail”.

“This bill builds on this ominous trend and takes it to a new level, providing unprecedented new powers for law enforcement to interfere and ‘disrupt’ communications of citizens without effective restraint. The abuse of power this bill enables will happen. Enough is enough,” the NSWCCL submission said.

A coalition of digital rights and civil liberties organisations said that the powers amount to “state-authorised hacking”.

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NSWCCL on Surveillance Legislation Amendment (Identify and Disrupt) Bill 2020

Media Coverage: iTWire

'The NSW Council for Civil Liberties has slammed the proposed authorisation of coercive search powers for the Australian Federal Police and Australian Criminal Intelligence Commission in a current bill — the Surveillance Legislation Amendment (Identify and Disrupt) Bill 2020 — saying the warrants sought are not traditional evidence gathering tools, but effectively tools to prevent crime before it took place.

"We cannot accept a new species of warrant that is based on the notion that the role of law enforcement is to stop possible future offences from being committed where the breadth of their application is so wide," NSWCCL secretary Michelle Falstein said in a submission to an inquiry into the bill, being conducted by the Parliamentary Joint Committee on Intelligence and Security.

"The minister’s focus on the need to, for example, delete online child abuse material, distracts from the real implications of this bill and pretends law enforcement agencies are not already taking appropriate action against such material." The submission was one among 13 released on Monday.

The bill, introduced on 3 December 2020, seeks to give the AFP and the ACIC three new warrants in order that they can handle serious criminal acts online.'

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New powers like science-fiction movie Minority Report, NSWCCL says

Media coverage: Innovation Aus

'The federal government’s proposed new hacking powers for the Australian Federal Police are a “catch-all formula for abuse” and resemble something from the Hollywood film Minority Report, the NSW Council for Civil Liberties says.

The federal government late last year quietly introduced legislation to Parliament handing broad new powers to the AFP and Australian Crime and Intelligence Commission (ACIC) to hack into the computers and networks of suspected criminals.

In its submission, the NSW Council for Civil Liberties (NSWCCL) said it was time to draw a line in the sand over increasing laws that erode privacy under the guise of preventing “serious crime”.

The council said the latest legislation is the “next in an accelerating wave, strengthening the powers of the state without any humility about the cumulative erosion of democratic freedoms they entail”.

“This bill builds on this ominous trend and takes it to a new level, providing unprecedented new powers for law enforcement to interfere and ‘disrupt’ communications of citizens without effective restraint,” the NSWCCL submission said.

“The abuse of power this bill enables will happen. Enough is enough.”

The NSWCCL said that the data disruption warrants and account takeover warrants are “crime prevention” tools that resemble something from the science-fiction movie Minority Report.

The powers will apply to a wide range of potential crimes – any carrying at least three years of jail time – not just those referenced by the government in announcing the laws, the submission said.

“This is an extraordinary catch-all encompassing fauna importation, fraud and importantly, such vaguely worded offences as ‘communication and other dealings with inherently harmful information by current and former Commonwealth officers’,” the NSWCCL said.

“These secrecy provisions have already been used to intimidate whistleblowers in several high-profile cases over the last few years. They are framed in a way that prevents vital information regarding government wrongdoing from ever coming to the attention of the public.”

The NSWCLL said that the data disruption warrants, and account takeover warrants, are “crime prevention” tools that resemble something from the science-fiction movie Minority Report.

“We cannot accept a new species of warrant that is based on the notion that the role of law enforcement is to stop possible future offences from being committed where the breadth of their application is so wide,” the NSWCCL said.'

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NSWCCL at House Standing Committee on the Environment and Energy hearing, Climate Change Bill 2020

On 1st February 2021, NSWCCL Vice-President and Convenor of the Civil and Human Rights Action Group, Jared Wilk, appeared at the House Standing Committee on the Environment and Energy hearing on the Climate Change (National Framework for Adaptation and Mitigation) Bill 2020 and Climate Change (National Framework for Adaptation and Mitigation) (Consequential and Transitional Provisions) Bill 2020. You can read the NSWCCL submission of the Climate Change (National Framework for Adaptation and Mitigation) Bill 2020 HERE.

Here is NSWCCL's Opening Statement:

Good afternoon Chair, and members of the Committee. NSWCCL thanks the Committee for the invitation to appear today. I would like to acknowledge the Gadigal of the Eora Nation, the traditional custodians of the land on which I appear and pay my respects to the Elders both past and present.

The NSWCCL is a non-partisan, member based civil liberties and human rights organisation of long standing in NSW, founded in 1963. Since 2019, NSWCCL has resolved to play our part in the fight for climate justice. We recognise that anthropogenic climate change is a crucial civil liberties and human rights issue; an emergency that is curtailing the enjoyment of our rights today. This was starkly demonstrated by the 2019-20 bushfire season and has been repeatedly underscored by the expert Committees responsible for administering the key UN Human Rights Treaties. Warming beyond the level countenanced by the Paris Agreement – that is, preferably under 1.5 degrees, or a maximum of 2 degrees relative to pre-industrial levels – is likely to seriously infringe the fundamental rights of Australians, including, inter alia, the rights to life, property, enjoyment of culture, privacy, physical and mental health, and an adequate standard of living.

In 1896, Swedish scientist Svante Arrhenius concluded that human carbon dioxide emissions were substantial enough to cause climactic warming. An ExxonMobil scientist named James Black wrote an internal document in 1977 identifying a ‘general scientific agreement’ that humans are influencing the climate through carbon dioxide emissions. He wrote that humanity had a five to ten-year window until hard decisions need be taken. Yet in 2021, Australia still does not have a long-term emissions target consistent with real action on climate change and Australia’s international obligations under the Paris Agreement.

NSWCCL considers that the Bill in question would greatly assist the federal government in planning and coordinating mitigation and adaptation efforts in relation to climate change.

The Prime Minister was quoted, on January 23 of this year, as insisting that “you don’t get there [to net zero] by just having some commitment.” Unfortunately, this statement is both self-evident, and, as a repudiation of a statutory emissions reduction target, a non-sequitur. It does not follow from the fact that you don’t get there just with a target that no target should exist. Without a legislated commitment to reduce carbon emissions, the community lacks certainty and direction. The Bill under consideration is a structural reform, about fostering the policy stability and predictability to enable the investment which will bring about the possibility of zero net emissions. Stability and predictability are engendered not just by the 2050 target, but also the cyclical risk assessments, adaptation plans, emissions budgets and emissions reduction plans. Statutory obligations ensure that the government is accountable to the Parliament and the people. Statutory obligations signal that, while the Executive should still maintain flexibility in formulating and implementing climate policy, its discretion on a matter of such enormous consequence and with such a lengthy time horizon (well beyond the electoral cycle) must be controlled by Parliament, such that Executive actions are ultimately appropriate and adapted to reaching the Paris targets. The science-based advice and assessment of the new Climate Change Commission, at every stage in the statutory process, will prove indispensable to the achievement of high-quality policy and implementation. Importantly, the Bills will embed climate change considerations into federal government decision making and provide for some mandatory considerations and duties which may open inadequate and unlawful decision-making to judicial review, helping to ensure that Australia stays on track with respect to emissions reductions.

NSWCCL notes that multiple jurisdictions, including the UK, New Zealand, Sweden and Victoria have enacted similar legislation. From our research, it appears that the results in the UK, the first jurisdiction to have done so, have been positive. 

We do have some concerns about the Bill as drafted, of which I am happy to say more. Having now had the benefit of reading other submissions, we share some of their additional concerns as well, mostly relating to drafting issues and strengthening some elements of the Bill. However, for the reasons just mentioned, NSWCCL commends the Bill. 

 

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From the 2021 President

It is a great honour to be stepping back into the role of President of the NSW Council for Civil Liberties for 2021 and I look forward to continuing the important work that was achieved by CCL during 2020, a year that refocused the attention of all Australians on the vital importance of our rights and freedoms and threw into sharp relief their fragility. The State and Federal Governments’ emergency responses to the COVID-19 pandemic graphically illustrated the need for CCL and like-minded organisations in civil society to remain vigilant in protecting our civil liberties and human rights.

Thanks to Nicholas Cowdery AO QC FAAL

But before I go on to outline some of the priorities we will pursue in 2021, I would like to thank Nicholas Cowdery for his exemplary work as President of CCL from November 2019 until January 2021. He has been an exceptional spokesperson for the organisation and has advocated on many issues including drug law reform, the inadequacy of police responses to survivors of sexual assault, a coherent government drug and alcohol policy based on health and social foundations rather than criminal law, the over-use of strip-searching, laws to enable voluntary assisted dying, truth in political advertising, the need for a national integrity commission, raising the minimum age of criminal responsibility to 14 and justice for First Nations Australians. 

His advocacy for the balanced use of emergency powers during the pandemic was outstanding and his concerns about the lack of parliamentary oversight of those powers during periods of suspension were apt. He rightly observed at the time that 'even the darkest days of the world wars did not force parliament to close for extended periods'.

These are only a few of the issues through which he so effectively led CCL. I’m sure you will join me in thanking him for his remarkable achievement. It is a great privilege to be taking on the role after his inspiring term as President.

You can read Nicholas Cowdery's Outgoing President's report HERE.

Priorities for 2021

The extraordinary year of 2020, which saw the dramatic curtailment of our freedom of movement, tracing of our movement and other restrictions by governments grappling with a health crisis, threw into sharp relief the need for a Human Rights Act in NSW, and a Federal Charter of Rights. Our advocacy for these will remain a priority in 2021.

The inequities faced by First Nations people in the justice system, and society more broadly will be a major focus of CCL in 2021, as we support the implementation of the Statement from the Heart and work with members of First Nations peoples to advocate for solutions that are community-led and aligned with principles of self-determination.

We will continue our dogged advocacy for a better system for people seeking asylum in Australia, for an improved visa system for refugees and for community solutions rather than detention, which is unjustifiably costly both in financial and human terms.

In the age of big data, it is essential that we continue our effective work on data retention and privacy, freedom of speech and censorship, open government and whistle-blower protection. 

We must also remain vigilant to secure fundamental rights in the face of ever-greater powers being sought and granted to Australian authorities in the name of national security and counter-terrorism.

The importance of the right to protest also came into sharp focus in 2020, with Black Lives Matter demonstrations across the globe. Police responses to demonstrators is of continuing concern as is the over-use of strip searching, including of minors, and the inappropriate use of sniffer dogs. Our work in these important areas will be ongoing.

Other priority issues will include women's rights, climate justice, LGBTIQ rights including limiting the ability of schools to discriminate against students and teachers and resisting pressure to weaken anti-discrimination laws.

So, we certainly have our work cut out for us in 2021. I am looking forward to the challenge!

Pauline Wright
President NSWCCL

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Nicholas Cowdery AO QC FAAL passes the baton to Pauline Wright

Outgoing President’s Report, 27 January 2021

Nicholas Cowdery AO QC FAAL

It has been a great privilege to serve as President of the NSWCCL from the AGM on 23 October 2019 until today (with re-election at the AGM on 21 October 2020). I agreed to nomination to the position on condition that I would serve for 12 months (and the minutes of the AGM bear me out). Pauline Wright was then not standing for customary re-election after one term because of her Law Council of Australia presidency in 2020; but she has graciously agreed to return as President now that her Law Council duties have ended.

Those 15 months have been a disruptive time for everybody and no less for the NSWCCL. The first few months were routine enough, but face-to-face activities were unable to proceed after the pandemic was declared and new challenges were thrown up for NSWCCL. Our meetings since March 2020 have been by Zoom or by telephone and we have been unable to hold any gatherings that normally bring members together and facilitate networking and the exchange of ideas in areas of interest.

Our highly successful annual dinners of the past and the Marsden Memorial Lecture have had to be suspended. Instead, on 11 September 2020 we held a very successful online panel discussion focused on Indigenous issues, with the Award for Excellence in Civil Liberties Journalism being announced at the end. We also joined with the Affinity Intercultural Association for a webinar on 2 September 2020. I hope there will be scope for more online events as we continue in the COVIDsafe mode.

Alongside these events the customary work of NSWCCL has proceeded. We have responded to the novel civil liberties challenges of SARS-CoV-2, made many media appearances on that and other issues, met with key players in the human rights and law enforcement areas and made many submissions to parliamentary inquiries and statements for publication on the website. We have continued to liaise with other civil liberties groups around the country. We have not taken a virus-induced holiday.

I give thanks to all who have been active in our campaigns and in the ongoing administration of NSWCCL. I particularly thank our Secretary, Assistant Secretary, Treasurer and Executive Officer who have done mighty work to keep NSWCCL relevant and effective. Many members of the Committee also deserve our thanks – they know who they are.

When I accepted nomination for President I issued a challenge for the next generation to come into leadership positions. I said the organisation needs to be rejuvenated by those at the top, to reflect the increasing interest and involvement of young people in a world where human rights challenges continue to emerge.

I am pleased to say that after some inertia, that message may have got through. The Committee and general membership have been augmented by much younger, smart and committed people, and that is excellent.

I am willing to accept appointment to the Committee and remain until the next AGM; but the future of NSWCCL belongs to all of you who accept the challenges to actively maintain, preserve and protect fundamental civil liberties in Australian society.

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NSWCCL on One Nation Education Bill 'reject this unnecessary and harmful bill'.

Media coverage: The Star Observer

The New South Wales Parliament has permitted One Nations leader Mark Latham to lead an inquiry into his own controversial Bill.

The Parliament committee headed by Mark Latham is inviting submissions through an online questionnaire and LGBTQI advocacy organisations are asking the community to register their protest against the Bill. 

The Education Legislation Amendment (Parental Rights) Bill 2020 says its aim is to give parents, not schools, the primary responsibility “for the moral, ethical, political and social development of their children.” The Bill allows parents to object to the teaching of anything related to gender identity and sexuality in schools if it contradicts their values. 

The danger from the Bill is not just to the LGBTQI community. The NSW Council For Civil Liberties said that if the Bill is enacted, “parents could object to curriculum that covers Australian Indigenous history, the Stolen Generations, climate change, immunisation, evolution, LGBTIQ+ people, different cultures and religions, science, refugees and people seeking asylum.”

The Council said it was important to ensure the NSW Parliament “rejects this unnecessary and harmful bill.”

The submissions to the inquiry into Mark Latham’s Education Legislation Amendment (Parental Rights) Bill 2020 can be made by filling the online questionnaire here. 

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NSWCCL on Australians stranded overseas due to COVID caps

Media coverage: Brisbane Times

The Morrison government is under pressure from within to increase the caps on the number of Australians allowed back into the country after Emirates abruptly suspended flights and cut off a major option for stranded travellers trying to get home.

Stephen Blanks, a spokesman for the NSW Council of Civil Liberties, said it was extraordinary that Australian citizens were unable to return to Australia because of quotas on the number of arrivals.

"The quotas have been set at a level where Australian citizens are left in distressing situations," he said. "There should be a scheme for ameliorating the hardship that Australian citizens face overseas as a result of this government policy."

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Statement: NSW Auditor General's Report on privacy, Service NSW

On 18 December 2020, the Auditor-General for New South Wales, Margaret Crawford, released a report criticising the effectiveness of Service NSW’s handling of customers’ personal information to ensure privacy. NSWCCL has long held concerns over the manner of the use, collection, and storage of personal information of NSW citizens by the NSW government. The damning report highlights the lack of understanding and commitment to proper privacy practices in the NSW public service.

The report states that “Service NSW is not effectively handling personal customer and business information to ensure its privacy. It continues to use business processes that pose a risk to the privacy of personal information. These include routinely emailing personal customer information to client agencies, which is one of the processes that contributed to the March 2020 data breach. Previously identified risks and recommended solutions had not been implemented on a timely basis.”[1]

The Auditor-General made eight recommendations aimed at ensuring improved processes, technologies, and governance arrangements for how Service NSW handles customers’ personal information. These included, as a matter of urgency, that Service NSW should, in consultation with relevant NSW government departments and agencies, and the Department of Customer Service, implement a solution for a secure method of transferring personal information between Service NSW and those agencies.

The 2019–20 bushfire emergency and COVID 19 pandemic restrictions have dramatically increased Service NSW processes. Additionally, as of 1 January 2021, s. 36(3)(a1) of the Public Health (COVID-19 Restrictions on Gathering and Movement) Order (No 7), requires people who enter a hospitality venue or hairdressing salon to register their contact details electronically with Service NSW (known as the COVID-19 Safe Check-in tool and generally using QR codes). Those details are kept for a period of 28 days and, if requested, will be provided to the Chief Health Officer for contact tracing purposes.

Several issues arise from the report’s findings and the use of personal information for the COVID-19 Safe Check-in tool:

1) There was outcry over the privacy implications of the Federal COVIDSafe App and as a consequence specific legislation was introduced around its use. There has been no accompanying legislation surrounding the COVID-19 Safe Check-in tool via the Service NSW app. The privacy collection statement for the check in tool is to be read in conjunction with the Service NSW privacy policy. The former, which is largely prescriptive of the operation of the collection rather than privacy policy, assures that the information is for contact tracing purposes. The latter states that, your personal information “may also be used in an emergency situation to help prevent a serious and imminent threat to life or health, or for law enforcement purposes, or where we are authorised or required to do so by law”.

We have already seen that the Singapore TraceTogether App, on which the COVIDSafe App was based, can be accessed by police in the course of a criminal investigation.[2]

NSWCCL strongly opposes the use of information gathered for health purposes being used for law enforcement or any other additional purpose.

Apart from the obvious areas of misuse of personal data and “big Brother” implications there is a strong possibility that, if aware police can use the data, many citizens of both innocent and criminal means will choose to enter false and misleading data.

The NSW government should be assuring NSW citizens that information gathered will be used only for its primary purpose. Ideally, the management of the COVID-19 Safe check-in tool needs to be enacted in primary legislation, not just in an Order.

2) When the QR code is scanned at a venue, Service NSW will collect your name, contact details time and date of entry and, crucially, your location. Collection of this information is mandatory to gain entry.

Opting out of digital interactions is not a realistic option for most people. Balancing interests therefore amounts to having to agree to terms of access or risking the suffering of economic disadvantage, discrimination, or social exclusion. Community sentiment suggests that location data should be considered highly sensitive.

A breach of this information means that an individual could be tracked, profiled, targeted, or otherwise impacted upon. NSWCCL believes that is a privacy harm which requires greater protection.

3) Service NSW is a custodian of our data and any disclosure of our personal information to third parties and agencies should only occur in very limited circumstances. The Auditor General has identified that Service NSW has been deficient in its agreements with client agencies as well as its policies and processes for managing privacy risk.

There is therefore little reason to trust that Service NSW will protect our personal sensitive information. Service NSW must adopt the recommendations of the Auditor General immediately. 


[1] The March data breach refers to two external threats targeting the email accounts of 47 staff members, resulting in the breach of a large amount of personal customer information held in those email accounts. See Report; “client agencies” is a reference to NSW Government agencies that delegate to and enter into agreements with the Chief Executive Officer of Service NSW in order for Service NSW to undertake service functions for the agency.

[2] Han, K (11 Jan 2021) Broken promises: How Singapore lost trust on contact tracing privacy MIT Technology Review <https://www.technologyreview.com/2021/01/11/1016004/singapore-tracetogether-contact-tracing-police/>

 

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