Since the 9/11 terror attacks in the United States, the Australian Government has enacted laws that confer extraordinary powers upon government and their agencies. Such laws may be directed to protecting the community, but they undermine the very freedoms we are seeking to protect from terrorism. Thankfully, no similar act of mass violence has occurred in Australia, despite this, successive governments have expanded powers and increased resources associated with terrorism offences. 

These counter-terror measures have, and continue to, reshape Australians' understanding of the proper limits to government power and minimum democratic protections. Over time the counter-terror laws have become normalised and often passed with bipartisan support, this has extended to undermine even the most basic rights, including the power to strip someone of their citizenship. 

The Councils for Civil Liberties (NSWCCL, QCCL, Liberty Victoria) have come together to make this joint submission in opposition to the proposal to make permanent division 3 of Part III to the Australian Security Intelligence Organisation Act 1979 (“the Act”). We submit that division 3 of Part III should be repealed, or allowed to lapse when its sunset date is reached, in accordance with the recommendations of the INSLM in 2016.

The submission will proceed through the following issues in broadly the following terms:

a. that Questioning Warrants (“QWs”), whether or not they require the arrest and
immediate appearance of a subject, constitute a form of administrative detention
without suspicion or conviction of criminal guilt. This is unacceptable in a
democratic society subject to the rule of law. Of particular concern is that children
as young as 14 can be subject to these warrants;

b. that coercive questioning and the permitted uses of derivative material, including
its disclosure to an actual or potential prosecutor of the subject, seriously
diminishes the right of accused persons to a fair trial. Read in the context the
division as a whole, the provisions on derivative use tend to characterise ASIO as
a secret police force, rather than an intelligence gathering agency; and

c. linked to this, the qualifications on the right of an accused to legal representation
and advice, violate the subject’s right to a fair trial and place the subject on an
unequal footing with the state, in circumstances where the subject may suffer
serious penal sanctions as a result of the interrogation.

The New South Wales Council for Civil Liberties (NSWCCL) welcomes the opportunity to contribute to the NSW Law Reform Commission (Commission) ‘Consultation paper: Unlawful Conduct’ (Consultation paper) concerning the Anti-Discrimination Act 1977 (NSW) (ADA) Review (Review).

NSWCCL made a submission, dated 28 September 2023, to the Commission in relation to the Review of the ADA. That submission is referenced in the Consultation Paper and is listed in Appendix A: Preliminary submissions as PAD21 (PAD21).

NSWCCL continues to endorse and relies on the comments and recommendations made in PAD21. It will also be referenced in this submission.

It is noted that the terms of reference, in this Consultation paper, consider issues relating to the tests for discrimination, who is protected, the areas in which discrimination is prohibited and exceptions. It also considers harassment, civil vilification and other unlawful acts, as well as liability and measures to promote substantive equality.

The NSWCCL strongly opposes all forms of hate directed towards vulnerable groups. The NSWCCL is also concerned about the weaponisation of hatred directed towards vulnerable groups as a political tool to pass legislation which unduly restricts civil liberties. Responding to hate in the community must be evidence-based and carefully considered with reference to other fundamental freedoms that are owed to individuals.

Last night, the NSW Council for Civil Liberties (NSWCCL) Annual General Meeting passed a resolution calling on the NSW Police to withdraw the anti-protest charges against the remaining 130 people arrested in Newcastle who were protesting the world’s largest coal port.  

NSWCCL considers that codification of the principle of doli incapax is unnecessary and inadvisable.  NSWCCL considers it a bare minimum that if a child aged between 10-13 years is charged with a crime, their understanding of the serious moral wrongness of that conduct should be established beyond reasonable doubt.  

NSWCCL is concerned that the Review has been commissioned in response to statistics indicating a fall in the successful prosecution of children since the High Court of Australia's decision in RP v The Queen.  Australia spends approximately $1 billion per year incarcerating children, despite unequivocal evidence from across Australia that incarcerating children leads to increased rates of crime.  It is well documented that child crime rates across Australia have been falling for over a decade.  Further, over 70% of the NSW proceedings against children under 14 years in 2023 were for non-violent crimes.  There is therefore no pressing need for law reform that creates legislation that has the effect of increasing interactions of children with the criminal justice system.

When a child interacts with the criminal justice system, that justice system must act in accordance with the best interests of that child.  Incarceration, even for a short time, has deleterious effects on children.  This is particularly pertinent to children with significant vulnerability and First Nations children, who are over-incarcerated and disproportionately harmed by measures aimed at increasing child prosecutions and incarcerations. 

You can read our submission here.

Today the NSW Council for Civil Liberties, Queensland Council for Civil Liberties and Liberty Victoria (the CCLs) have jointly submitted to the Parliamentary Joint Committee on Intelligence and Security review into the Australian Security Intelligence Organisation Amendment Bill (No. 2) 2025. The CCLs are alarmed that the federal Labor Government is making the post 9/11 questioning and detention powers permanent. The questioning warrant powers remove or restrict accepted legal rights of due process, rights of an accused person to have legal representation and to a fair trial. These powers can be used to arrest, detain and question someone as young as 14, without any suspicion or criminal charge against them. 

The CCLs submit that these immense powers are contrary to the basic democratic principles and would characterise ASIO as a secret police force, rather than an intelligence gathering agency. 

The CCLs remind the government that Parliament’s duty is not merely to protect the safety of the public at all costs. It must also preserve the democratic liberty which the public cherishes and is entitled to expect. The appropriate balance must be struck. If, in combatting extremism, this society descends into authoritarianism, then the Parliament has destroyed what it is seeking to save

Quotes attributable to Timothy Roberts, President NSWCCL 

“Political speech must be protected. This is an absurd situation where someone, in their private capacity, asked a question about an intelligence agency and has subsequently been targeted, censored and publicly condemned by their employer. 

“It is in the public’s interest for questions to be asked regarding the trustworthiness of information from the government, including from intelligence agencies. This year alone it has been exposed that the Dural Caravan incident was known to be a criminal hoax from early on, while the NSW Premier used this to inflame fear in the public and push through anti-protest laws. 

“In a democratic country, we are entitled to question and scrutinize the decisions of all states. Even more so, we are entitled to question and scrutinize the decisions of intelligence agencies. 

“Across Australia we are witnessing institutions, including hospitals, cave to pressure and use codes of conduct and policies to repress legitimate political speech. This is shameful, antidemocratic behaviour.

“As a matter of public policy, definitions which conflate criticism of Israel and its government’s policies with antisemitism are of serious concern to freedom of speech, in the circumstance of Peter Macdonald this is taken even further to equate criticism of the Israeli intelligence agency Mossad, with antisemitism.”

The NSWCCL 2025 Annual Dinner will have a keynote address from global best-selling author, journalist and film-maker Antony Loewenstein. He will be speaking to members and friends of the NSWCCL on the topic of ‘Free Speech and Discomfort in a Time of War.’ The Annual Dinner will also be addressed by human rights lawyer and Executive Officer of the Jewish Council of Australia, Sarah Schwartz.

Antony’s latest book, The Palestine Laboratory, is an award-winning and best-selling book that exposes Israel’s military industrial complex and shows how it “battle-tests” its weapons and surveillance on Palestinians before selling them to the world.

The NSWCCL is deeply concerned about the censorship some of our community faces when looking to address some issues publically. The NSWCCL is committed to ensuring we are able to have these conversations and welcome the address as one such occasion. This is particularly important given the actions of the NSW Government.

In February this year, the NSW Minns Labor Government passed laws to criminalise the incitement of racial hatred. The offence carries a maximum penalty for an individual of two years’ imprisonment, fines of up to $11,000, or both, while corporations can face fines of $55,000. Hatred was not defined in the laws. In passing these poorly drafted laws, the NSW Government has improperly suppressed speech. They have also acted against the recommendations of the former Chief Justice Tom Bathurst NSW Law Reform Commission, which warned that hatred is too imprecise and subjective a term for the criminal law. Further, the review made clear they go against the advice of the UN Committee on the Elimination of Racial Discrimination which warned that restrictions on freedom of speech should not be “broad or vague”.

The incitement of violence on the basis of race, religious beliefs, sexual orientation, gender identity, intersex status and HIV status was already illegal, as are civil protections against hate speech in the Anti-Discrimination Act, and rightly so. These laws protect our community while not unreasonably burdening free speech.

Hannah Thomas, a candidate who stood against the Prime Minister in the recent federal election, was seriously injured on Friday, reportedly at the hands of NSW Police. The NSWCCL understands that NSW Police used the Premier’s new move along powers in disrupting what was otherwise a peaceful protest.

Public assemblies have been protected under the Law Enforcement (Powers and Responsibilities) Act 2002 (‘LEPRA’), whether they are “authorised” through the Form 1 process or not. The Minns Labor Government passed draconian laws that lowered the threshold for NSW Police to issue move on orders, by amending Section 200 of LEPRA which speaks to the operation of these powers in s 197.

It has been reported that the fact sheet of an arrestee at the protest includes reference to a ‘place of worship’. NSWCCL has warned of the potential misuse of these laws since they were first announced.

On Friday the Legislative Council committee inquiry into the impacts of the regulatory framework for cannabis in New South Wales released its final report. The NSW Council for Civil Liberties (NSWCCL) has long called for decriminalisation of cannabis across Australia, coupled with regulation. We believe that the criminal law is ill-suited to deal with drug use in the community. We welcome the committee's final report and urge the NSW Government to take immediate action to implement their recommendations. 

A copy of the NSW Council for Civil Liberties (NSWCCL) submission to the inquiry can be found here. In August 2024, former President of NSWCCL and former Director of Public Prosecutions, Nicholas Cowdery AO KC FAAL appeared at the inquiry on behalf of NSWCCL, his comments can be found here. 

Today, the High Court has handed down its decision in Ravbar & Anor v Commonwealth of Australia & ORS [2025], otherwise known as the case testing the legality of the CFMEU administration. The High Court found the Fair Work (Registered Organisations) Amendment (Administration) Act 2024 is constitutionally valid. 

The NSW Council for Civil Liberties (NSWCCL) remains seriously concerned about the administration and its implications for all member-based civil society organisations, unions, and registered clubs. Last year, the Commonwealth removed democratic control of the CFMEU by its members on the basis of what were at the time, untested allegations. The findings of the High Court do not negate that the CFMEU was placed into administration without, at the time the legislation was passed, any proven allegations of wrongdoing. The appropriate response from the government should have been to test the allegations against CFMEU officials and delegates in court, and if proven, sought the removal of the officials. This process was circumvented when administration was imposed by parliament, and went against the essential democratic principles of innocence until proven guilty, due process and freedom of association. The administration legislation may now operate as a legal model for the takeover of other unions and other member-based civil society organisations in the future. 

Over the past twelve months there has been a worrying trend of state overreach by the federal Labor Government, which threatens to undermine the rule of law, including through the passing of the Administration Act and the introductions of mandatory minimum sentencing late last year. The NSWCCL maintains that everyone has the right to natural justice and procedural fairness, regardless of the allegations they face. 

The independence of membership-based organisations across Australia must be protected and Australia must uphold its obligations under the International Labour Organisation, namely Articles 3 and 4 of the Freedom of Association and Protection of the Right to Organise Convention, 1948.

Today, the NSW Premier Chris Minns has refused to appear before the NSW Legislative Council’s inquiry into the handling of the Dural Caravan incident. 

It was revealed in a previous hearing with NSW Police that the Premier and the Police Minister were briefed ‘very early on’ that the incident was like a criminal hoax, yet the Premier continued to use language of ‘mass casualty event’ and ‘terrorism’ in media related to the events.

This and other incidents were used as justification to pass a series of repressive laws including the Places of Worship Act, which restricts protest ‘at or near places of worship’ and is having its constitutionality tested before the NSW Supreme Court from Thursday, and the Inciting Racial Hatred Act.

Yesterday the University of Sydney administration announced that it has adopted a policy that represses political speech and activism on campus. This includes the banning  of banners or on campus without receiving prior permission and constraints on staff sending political emails. 

Comments attributable to Timothy Roberts, President NSWCCL 

“The adoption of this policy is a continuation of an alarming trend of political repression and the loss of academic freedom at the University of Sydney. The University’s leadership continues to take regressive stances on speech that should be of grave concern to not only current and former students and staff, but our community. We rely on institutions like USyd having free and open discussions on complex issues. 

Today the NSW Labor Government has announced that they will be reviewing the legal principle of doli incapax. 

Doli incapax is a way the Courts protect our community by ensuring that when prosecuting children, between the age of 10 and 14, the prosecution has to establish beyond reasonable doubt that the child knows and is capable of knowing what they did was wrong.

The use of beyond reasonable doubt is another, even ancient, community protection that ensures a high standard of evidence in criminal matters. This is important given the serious consequences for a person if convicted of a criminal matter, and the priority the community places on not convicting innocent people in our community. 

The NSW Council for Civil Liberties (NSWCCL) welcomed the opportunity to make a submission to the Justice and Communities Committee in regard to the inquiry into Antisemitism in NSW. Our organisation is proudly non-sectarian, but within our managing committee there are Jewish, Muslim, Palestinian and Christian people, along with atheists. Our members share a deep commitment to the elimination of all forms of racism, including antisemitism. We believe that responding to antisemitism in our community must be evidence-based, which means it cannot be responded to in isolation of other forms of discrimination.

The NSWCCL is concerned that antisemitism has been weaponised by politicians and the media particularly over the past year. This is done through the incorrect and harmful conflation of Zionism and Judaism. While Judaism is a religion and an ethnicity, Zionism is a modern political movement to establish a Jewish homeland in Israel. Conflating legitimate criticism of Israel with antisemitism at a time when Israel is justifiably being criticised for failing to meet international human rights standards by
the International Court of Justice is dangerous. This not only stifles legitimate political discourse about foreign affairs but also treats Jewish people as having monolithic political beliefs, a view that is itself antisemitic.

The New South Wales Council for Civil Liberties (NSWCCL) is alarmed at the revelations yesterday at the Select Committee on the Relationship between the Dural Caravan Incident and Parliamentary Debates on Legislation. It is deeply concerning that a NSW Police officer sitting at the top of the investigation into the incident had to sign a non-disclosure agreement (NDA) for the Australian Federal Police to reveal information confirming the incident was part of an opportunistic criminal conspiracy, and not anti-semitic terrorism.

The use of an NDA in this context is extremely unusual, and was clearly not in the public interest: the NSW public was made to believe that a “mass casualty event” or “terror attack” was imminent, and it was in this febrile atmosphere that the hate speech and anti-protest laws were rushed through parliament by Premier Minns on 21 February. 

The New South Wales Council for Civil Liberties (NSWCCL) applauds the NSW Legislative Council for initiating an inquiry into whether Premier Chris Minns and Minister Catley misled Parliament and the public to secure the passage of the Places of Worship Bill, Racial and Religious Hatred Bill and the Inciting Racial Hatred Bill.

NSWCCL's persistent advocacy has successfully secured the inquiry, which aims to uncover whether the government knowingly used fabricated threats of terrorism and a mass casualty event to justify the swift passage of repressive legislation that risks criminalising legitimate speech and protest.

The NSWCCL supports the legal challenge to the anti-democratic laws by the Palestine Action Group (PAG) in the Supreme Court of NSW today.  These laws granted NSW Police improper powers in dealing with protestors and activists at rallies. They included additional move-on orders that would cause serious damage to our right to assemble and communicate with each other, and therefore damage our democracy. They should be tested. 

Today the NSWCCL has written to State MPs calling on their support for a NSW Legislative Council inquiry into whether Premier Chris Minns and Minister Catley misled the Parliament and public in order to pass the Places of Worship Bill, Racial and Religious Hatred Bill and the Inciting Racial Hatred Bill. 

The information available on the public record indicates the Premier may have been aware that the caravan incident was a criminal hoax, not a credible threat to lives, as early as 29 January 2025. Despite this he warned the public that it was “terrorism” and the “discovery of a potential mass casualty event”. Deputy Commissioner Barrett has said that investigators knew “almost immediately” that the plot was a fabrication. The New South Wales public should have clarity regarding what the Premier knew, when he knew it and the circumstances of the legislation he then rushed through parliament as a consequence.