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NSWCCL joins public statement opposing NSW One Nation Education Bill

PUBLIC STATEMENT

We represent a vast group of community and civil society partners and leaders in New South Wales (NSW) who place on the public record our strongest opposition to NSW One Nation’s Education Legislation Amendment (Parental Rights) Bill 2020. This legislation, introduced to the NSW Parliament by One Nations Mark Latham, aims to outlaw the teaching of gender diversity and the acknowledgement of trans and gender-diverse students and their families and seeks to strip professional accreditation from any teachers and school staff breaking such a law.

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Submission: Exemption of delegated legislation from parliamentary oversight

INQUIRY INTO THE EXEMPTION OF DELEGATED LEGISLATION FROM PARLIAMENTARY OVERSIGHT

The New South Wales Council for Civil Liberties welcomes the opportunity to make submissions to the Senate Standing Committee for the Scrutiny of Delegated Legislation with respect to its Inquiry concerning the exemption of delegated legislation from parliamentary oversight.

 

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Submission: Senate Committee, Scrutiny of Delegated Legislation

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.

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Statement: Exemptions to Hotel Quarantine, COVID-19

10th July 2020

PUBLIC STATEMENT

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’.

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Submission: COVID-19 Senate Committee

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.

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Submission: Migration Amendment (Prohibiting Items in Detention Facilities) Bill 2020

The Council for Civil Liberties (NSWCCL) thanks the Legal and Constitutional Committee (the Committee) for its invitation to make a submission concerning the Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2020 (the bill). The bill is a modified version of a bill that was introduced in 2017 (the 2017 bill).

NSWCCL would like to speak further to these arguments when the bill is considered by the Committee.

Recommendations:

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.

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NSWCCL meets with NSW Police Commissioner Mick Fuller

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.

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NSWCCL writes to LEGCON Senators re Inquiry into Migration Amendment Bill 2020

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?

View the letter

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Concerns about facial recognition inside every Australian 7-Eleven store

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.

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Joint statement: Australians' right to protest

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.

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NSWCCL President & 29 prominent Australians call for truth in political advertising laws

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.'

Read more or see the letter as published in the SMH (17th June 2020)

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Refugee Week 2020

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.

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Civil Liberties: Good or Bad?

Media coverage: Byron Bay Echo

- Hans Lovejoy, editor 

'With attention fixated on injustice, policing and black lives, the NSW Council for Civil Liberties (NSWCCL) is just one voice of sanity in a country awash with racism and bigotry.

Based in Sydney, they are a small group of lawyers committed to educating the public and advocating for the most vulnerable. NSWCCL said in statement regarding the marches, ‘There have been 432 Indigenous deaths in custody since the 1991 Royal Commission – including the recent death of Tanya Day, which the coroner found to be preventable – and its recommendations have never been fully implemented.

‘To our knowledge, no one has ever been convicted in relation to those deaths. Indigenous peoples are over-policed and over-incarcerated, with adults 15 times more likely to be incarcerated than non-Indigenous Australians and juveniles 26 times more likely to be incarcerated. The Australian Bureau of Statistics reported in December 2019 that while Aboriginal and Torres Strait Islander people make up around three per cent of the total Australian population, they account for 29 per cent of the total adult prisoner population in Australia’.'

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NSWCCL concerned about health and safety of persons in custody, COVID-19

The NSWCCL has written to the Commissioner of Corrective Services NSW, the NSW Health Minister and the CEO of Justice Health to express concerns in relation to the health and safety of persons in custody in NSW in light of the current COVID-19 pandemic.  

The Council notes that there have been no confirmed cases of COVID-19 within the inmate population and that 23 have been isolated for testing. We note that there was a confirmed case of a healthcare employee at the Long Bay prison hospital in March 2020. 

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NSWCCL President on the arrest of an Indigenous teen

Media Coverage: Sydney Morning Herald

A former judge and top prosecutor says video footage of an Indigenous teenager falling face-first after being kicked off his feet by a NSW police officer is on its face "evidence of an assault".

Former NSW director of public prosecutions Nicholas Cowdery, QC, president of the NSW Council for Civil Liberties, said the video raised questions about the lawfulness of the arrest because the risk the teenager would carry out his threat appeared "slight".

"Arrest is really only lawfully available to prevent further offending, to prevent flight or to ensure attendance at court," he said.

In Mr Cowdery's view, it was not reasonable to use a sweep kick when the teenager was "under restraint and standing calmly". He believed the officer should be "charged with assault and re-trained".

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Statement: Black Lives Matter Protests

NSWCCL affirms our heartfelt support for the Black Lives Matter movement and its goals in seeking to eradicate systemic racism from our societies. We encourage all our members and those sympathetic to the cause of human rights and civil liberties to likewise support the BLM movement in any way reasonably possible.

NSWCCL has always acknowledged the pervasiveness of institutional racism in Australian society, ever present even 232 years after the brutal colonisation of this continent on racist terms. We strongly support all attempts to remedy this history of injustice and end the systemic disadvantage faced by Aboriginal and Torres Strait Islander peoples. Foremost among the injustices committed against indigenous peoples are those perpetrated by the criminal justice system.

Discrimination and unreasonable violence at the hands of police is an ongoing concern, as the cases of David Dungay Jr and the incident in Surry Hills recently emphasised. There have been 434 indigenous deaths in custody since the 1991 Royal Commission – including the recent death of Tanya Day, which the coroner found to be preventable – and its recommendations have never been fully implemented. To our knowledge, no one has ever been convicted in relation to those deaths. Indigenous peoples are over-policed and over-incarcerated, with adults 15 times more likely to be incarcerated than non-indigenous Australians and juveniles 26 times more likely to be incarcerated. The Australian Bureau of Statistics reported in December 2019 that while Aboriginal and Torres Strait Islander people make up around 3 per cent of the total Australian population, they account for 29% of the total adult prisoner population in Australia. 

NSWCCL calls for the implementation of the 1991 Royal Commission recommendations and the recommendations in the Uluru Statement from the Heart as a start in the ongoing struggle to end these shameful outcomes.

In relation to the protests on June 6, 2020, NSWCCL supported the right of people to rally in accordance with the decision of the NSW Court of Appeal authorising the assembly. It seems the protests were orderly and respected the public health imperative while remaining truly powerful. Police and protestor seemed largely to demonstrate appropriate respect and restraint. However, the worrying incident at Central Station involving the pepper spraying on protestors may raise serious questions.

Community anger and distress over the last-minute moves by the government and the police to prohibit the protest rally would not be so strong had it not been for the unexplained inconsistency in official responses. For example, a recent protest in Sydney boasted of thousands of attendees in clear contravention of the Public Health Orders and the government and police reacted very differently. There was also widespread confusion over the inconsistency between the response of the South Australian Government and Police to protests in Adelaide, which was to exempt that protest from the effect of the COVID-19 regulations, and the response in NSW. 

We urge all parties to bring their attention to driving systemic changes to achieve much needed justice for Indigenous Australians and continue exercising the restraint called for in a liberal society governed by the rule of law.

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NSWCCL President on suspension order against Aboriginal man still in place after 11 years

Media coverage: Sydney Morning Herald

A NSW Supreme Court judge has condemned the treatment of a 35-year-old Indigenous man with a mild intellectual disability who has been subjected to a tough supervision order restricting his movements for more than a decade, saying he has not been a "truly free man" since his teens.

The five-year extended supervision order (ESO) made by the court in 2009 was "still current, 11 years later" because the clock stopped running every time he was imprisoned for even minor breaches of conditions.

Former NSW Director of Public Prosecutions Nicholas Cowdery, QC, who is now president of the NSW Council for Civil Liberties, said the legislation introducing ESOs and other orders "was radical and controversial at the time" and was based on "a risk of future offending of a serious kind" that was difficult to predict.

"It is a form of punishment for future conduct that may not occur. Nevertheless, Parliament has the power to legislate this way in order to protect the community, but within limits," he said.

Mr Cowdery said the laws provided "a powerful rod for the backs of disadvantaged or excessively targeted groups in the community, including Indigenous people, who may be subject to such orders".

"They become an easy tool for law enforcement to use to unreasonably seek to control such people."

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Policing COVID-19 and the need for community support

Media coverage: Canberra Times

As state governments ease restrictions to varying degrees, Mr Blanks said that similar principles needed to be applied to exiting self-isolation as going in.

"That is you need very, very careful, sensitive enforcement from the police," Mr Blanks said.

"The police have to perform their role in a way that does not undermine community support (of restrictions) because one thing which could lead to a very quick loss of community support is if the police are seen to be picking on people unfairly, imposing fines as a first line of response instead of a last line of response, and imposing fines in ways that are not really relevant to the community health control aspect."

 

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COVIDSafe Bill: Parliament must strengthen protections

The Australian Government has released the Privacy Amendment (Public Health Contact Information) Bill 2020 (COVIDSafe Bill) which will be considered by Parliament this week. The COVIDSafe Bill largely reproduces the biosecurity orders which made it possible to begin to download and operate the COVIDSafe App (App).

The NSW, Queensland and South Australian Councils for Civil Liberties, along with the Australian Council for Civil Liberties, support the introduction of effective digital contact tracing if it is underpinned by robust privacy and transparency legislation.

The joint statement has been sent to the Prime Minister, the Attorney General and Opposition Leader, along with all MPs and Senators. 

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NSWCCL raises new privacy concerns with COVIDSafe app

Media coverage: Sydney Morning Herald

The Councils for Civil Liberties in NSW, Queensland, South Australia and the Australian Council for Civil Liberties issued a joint statement that backed the case for digital contact tracing but called for stronger safeguards.

'"More needs to be done to ensure that the app does not compromise data protection and thereby increase the risk of illegal and inappropriate use of data or surveillance of Australians," they said.

"It is also disappointing that the government has opted for centralised data storage in a national COVIDSafe data store rather than adopting the widely supported and more privacy-friendly decentralised option.

"Cyber attacks and accidental and illegal data breaches will continue to occur on Australian government databases. This storage choice creates a real risk of such breaches and will undermine users' confidence as to the safety of their private data."'

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