NSWCCL has long called for stronger legislation in relation to the collection, use and retention of the personal information of Australians. We welcome the comments of the Attorney General Mark Dreyfus, referring to the Optus data breach, that every corporation should only be collecting the minimum amount of data necessary for the relevant purpose.[1]

The NSW Council for Civil Liberties (NSWCCL) welcomes the opportunity to make a joint submission to The Hon Virginia Bell AC in response to the Inquiry into the Appointment of the Former Prime Minister to Administer Multiple Departments. 

NSWCCL strongly condemns the former Prime Minister Morrison's practice of secret ministerial appointments and welcome the seriousness with which Prime Minister Albanese is treating this issue. We applauded Prime Minister Albanese's announcement upon releasing the Solicitor General’s advice that his department was taking immediate steps to implement a practice of publishing in the Commonwealth Gazette future appointments of ministers to administer departments.

Announcing our incredible shortlisted journalists for the 2022 Excellence in Civil Liberties Journalism Awards!

Update 8 November 2022: The findings of the NSW Law Reform Commission into the inquiry of discrete parts of the Bail Act 2013 (NSW) have supported the NSWCCL submission concluding that no changes should be made to the Bail Act 2013 (NSW) in relation to the issues raised by the terms of reference. 

Bail laws exist to keep victims and the community safe until criminal proceedings are finalised, while safeguarding the presumption of innocence and general right to be at liberty until a matter is determined by the courts.

NSWCCL's submission supports this. Given their significant potential to limit individual liberty, changes to the Bail Act must be justified by a clear and compelling policy rationale. Any such changes must be supported by appropriate evidence. 

Concerns by the majority of stakeholders were expressed that the contemplated changes would likely:

• unnecessarily capture conduct that does not constitute a high degree of criminality
• increase the rate of bail refusals, including for people who may not receive a custodial penalty if found guilty
• lead to further growth in an already significant remand population, which would adversely affect individuals and the community
• frustrate government initiatives to address the overrepresentation of Aboriginal people in custody
• add further complexity to an already intricate statutory framework, and
• increase court workloads and backlogs by adding to the complexity of bail applications.

The Bail Act endeavours to strike a balance between community safety, the presumption of innocence and the general right to be at liberty.

Show Cause Requirement

In our submission, we identified inherent difficulties with the show cause requirement. NSWCCL submitted that show cause should be reserved for the most serious and high risk offences and the report reached a similar conclusion. The report identified inherent difficulties with the show cause requirement. 

This included criticisms that it:
· is unnecessary, as the unacceptable risk test is sufficient to address risks, and
· contributes to the over-incarceration of people who have not been convicted of any
crime.

Building on the second point, we described the show cause requirement as akin to a presumption against bail. The Aboriginal Legal Service argued that show cause “reverses the onus of proof, encroaches on the presumption of innocence and can lead to detention for allegations of relatively minor offending”.

The NSW Police Force (NSWPF) argued that the “inherent risks” associated with firearms offences warrants making further categories of firearms offences subject to the show cause requirement. It considered the existing inclusion of certain firearms offences as show cause offences demonstrated Parliament’s awareness of these risks.

However we argued and the report agreed that by selecting only certain categories of firearms offences for inclusion in section 16B, Parliament signalled it regarded them as more serious and suggestive of risk than other firearms offences. That is, the show cause requirement already covers the firearms offences considered to be the most serious and to involve the greatest degree of risk. As the Bar Association argued, the “gravamen of serious firearms offending is already captured by section 16B(1)(d)”.

The report supported with our submission that we do not support the inclusion of other firearms offences. The inquiry found "Certainly we did not receive any evidence, in the form of statistics or caselaw, demonstrating any need for this expansion."

The impact of remand on individuals and the community

Remand can significantly affect the lives of people subjected to it. This is particularly the case for vulnerable members of the community who are disproportionately represented in the criminal justice system. Remand can negatively
affect mental health, with higher rates of suicide among the remand population compared with the sentenced prison population. 

NSWCCL and the Corrective Services NSW (CSNSW) noted in our submissions that even a short time in custody can have a detrimental impact on the individual. It can include loss of employment, loss of accommodation, reduced access to services and breakdown of relationships. It also increases the likelihood of recidivism. It is particularly concerning if the person being held on remand is not likely to receive a custodial sentence and is therefore being exposed to the prison system only through remand. 

Criminal Associations

The committee concluded that they were are not persuaded that the Bail Act should include further guidance on the meaning or legislative definition of “criminal associations”. The Bar Association supported our position to oppose the
introduction of a legislative definition. If any definition was introduced, we believe it should contain safeguards to specify that simply associating with someone who has a criminal history is not sufficient to establish a person has criminal associations.

Recommendations

3. Show cause and firearms offences
Recommendation 3.1: Expanding show cause to include further firearms offences
The list of show cause offences in section 16B of the Bail Act 2013 (NSW) should not be expanded to include further firearms offences.

Recommendation 3.2: Unlawful private possession of a pistol or prohibited firearm
Section 16B(1)(d)(ii) of the Bail Act 2013 (NSW) should not be amended to include the unlawful possession of a pistol or prohibited firearm in a private place as a show cause offence.

Recommendation 3.3: Possession in breach of a firearms prohibition order
Section 16B of the Bail Act 2013 (NSW) should not be amended to include the possession of a pistol or prohibited firearm in breach of a firearms prohibition order as a show cause offence.

4. Show cause and criminal association offences
Recommendation 4.1: Expanding show cause to further criminal association offences
The list of show cause offences in section 16B of the Bail Act 2013 (NSW) should not be expanded to include further offences relating to criminal associations.

5. Show cause and criminal association offences
Recommendation 5.1: Legislative guidance on “criminal associations”
The Bail Act 2013 (NSW) should not be amended to include further legislative guidance on the meaning of “criminal associations”.

6. Other issues raised in this review
Recommendation 6.1: Adding other orders to section 18(1)(f) of the Bail Act 2013 (NSW)
Firearm prohibition orders and serious crime prevention orders should not be added to the list of orders in section 18(1)(f) of the Bail Act 2013 (NSW).

The full report is available here.

The New South Wales Council for Civil Liberties (NSWCCL) welcomes the opportunity to be involved in the review of discrete parts of the Bail Act 2013 (NSW) (Bail Act) conducted by the NSW Law Reform Commission.

The terms of reference (TOR) for this review are as follows:

1. Whether the existing list of firearms offences treated as ‘show cause’ offences under the Bail Act 2013 (NSW) should be expanded.
2. Whether further legislative guidance should be provided on the meaning of ‘criminal associations’ under the Bail Act 2013 (NSW).
3. Whether the list of offences relating to criminal associations that are treated as ‘show cause’ offences under the Bail Act 2013 (NSW) should be expanded.

NSWCCL recently made a submission to the Aboriginal Cultural Heritage (Culture is Identity) Bill 2022 Inquiry. In our submission we acknowledge that this Bill is designed to better protect and support Aboriginal Cultural Heritage (ACH) and that it presents an opportunity for long overdue and meaningful changes to cultural heritage legislation. If passed, it would also effect a tangible step forward for First Nations’ justice in NSW.

Clinton Austin, a Gunditjmara and Wiradjuri man has recently passed aged 38 in Loddon Prison. He is the second Indigenous man to die in custody in the state of Victoria in five weeks. 

According to the count kept by NSWCCL, he is also the 500th Indigenous death in custody since the findings of the Royal Commission into Aboriginal Deaths in Custody were handed down in 1991. 

For more information, read the full article.

NSWCCL's Stephen Blanks recently spoke to 7News regarding the installation of fingerprint scanners in Moorebank High School. These machines allow teachers to monitor which students are using the bathrooms in an attempt to stop vandalism. 

Concerns did arise however regarding consent as well as where this information was being stored. "There is no proper process of consent for gathering the data, one of the fundamental privacy principles is data shouldn't be gathered without expressed consent," Blanks said.

For more information, watch the full video. 

Last week the Senate Environment and Communications Legislation Committee handed down its report on the inquiry into the Climate Change Bill 2022 and Climate Change (Consequential Amendments) Bill 2022.

A legislative solution is the only way to prevent secret ministerial appointments says the New South Wales Council for Civil Liberties, Liberty Victoria and South Australian Council for Civil Liberties. 

The staggered release of the Medevac refugees from long-term detention in hotels scattered across the nation, which began in December 2020 and came to a close right before this year’s election, brought a lengthy campaign to see them out to an end, Paul Gregoire reports. 

But as federal Independent MP Andrew Wilkie points out, this recent victory and others like it, such as the government finally agreeing to New Zealand’s offer to take in hundreds of refugees currently in Australia, haven’t marked the end of the brutal Sovereign Borders regime.

NSWCCL recently made a submission to the Environment and Communications Legislation Committee regarding the Climate Change Bill 2022 and the Climate Change (Consequential Amendments) Bill 2022.

After a decade of inaction on climate change, the Climate Change Bill 2022 (Bill) represents welcome
progress. While we support the Bill as an improvement on business as usual, it is our view that:

• the target it enshrines in law is woefully inadequate; and
• beyond setting a target, the Bill fails to do any work towards achieving that target.

This said, through a few amendments the Bill has potential to provide a proper bedrock for Australia’s
ability to respond to the climate emergency and contribute towards the goals of the Paris Agreement.

More than 4,000 strip searches were carried out in New South Wales between July 2020 and May 2022 with data recently released under freedom of information laws revealing that of the strip searches conducted in that period, more than 100 children were searched, including a 13-year-old, Sydney Criminal Lawyers reports. 

A major concern is that police have ‘targets’ in relation to strip searches, which in itself could potentially lead officers to feel under pressure to overlook their legal responsibility – which states that they must have a ‘reasonable suspicion’ in order to conduct a strip search – in favour of ‘meeting quotas’. 

Australian state governments are tightening the laws surrounding sexual assault, introducing affirmative consent and the criminalisation of stealthing across the nation.

Over the course of the last two years, Australian laws pertaining to consent have been consistently debated and reformed, and the act of stealthing ­– the removal of a condom during sex without obtaining consent – has been at the forefront.

Stealthing is not a new concept, particularly to women, as the current research shows one in three Australian women have been victim to stealthing at least once in their lives.

The Office of the Director of Public Prosecutions (ODPP) NSW announced on 10 August that it was applying to the NSW Supreme Court to have a charge laid against a Corrective Services NSW (CSNSW) officer, who shot a Wiradjuri man in the back, upgraded from manslaughter to murder.

To charge a prison guard with the murder of a First Nations detainee is unprecedented in Australia. Indeed, charging the prison guard with manslaughter in relation to the death in February last year was already a first in itself.

“This development means that there’s substantial evidence that the corrective officer involved had the intent to murder,” said Paul Silva, whose been campaigning for reform around Aboriginal deaths in custody since his uncle died at Long Bay Gaol in 2015.

We are honoured to have special guests the Hon. Linda Burney MP, Minister for Indigenous Australians and Thomas Mayor, a signatory to Uluru Statement from the Heart, as our special guests our 2022 Annual NSW Council for Civil Liberties Dinner. Join us to listen and learn about the importance of Voice, Treaty and Truth and the momentous opportunity this presents for our nation and our organisation to support this important campaign.

Scott Morrison must resign immediately as the member for Cook, leave the Parliament, and try to salvage what remains of his shredded reputation as Australia’s 30^th Prime Minister writes Prof Jenny Hocking.

The Commonwealth Government has completed its 2021-2022 review of the Legislation Act 2003. NSWCCL provided a submission to the review and continues to hold the view that the recommendations of the committee could have and should have gone much further.

The NSW Law Reform Commission (LRC) recently tabled in the NSW Parliament Report 149 - Open Justice: Court and tribunal information: access, disclosure and publication.

The report makes 156 recommendations dealing with the operation of NSW court suppression and non-publication orders and access to information in NSW courts and tribunals. It is informed by the principles that, open justice is fundamental to the integrity of the administration; exceptions to access should be minimal and necessary to protect certain sensitive information, vulnerable people and the administration of justice; and the power and discretion of the judiciary, to control court proceedings and to determine open justice issues, should be preserved to the maximum extent possible.

NSWCCL is a Non-Government Organisation in Special Consultative Status with the Economic and Social Council of the United Nations (ECOSOC). We sought this special status because we believe that NGOs provide meaningful contributions to the work of ECOSOC by ensuring that states are accountable in their reports to the body. NGOs also augment state reports and call out poor state conduct through their ability to speak from experiences which are closer to the ground and embedded within states.  

The NSW Bureau of Crimes Statistics and Research (BOCSAR) just released its state custody figures for June 2022, which indicate that inmate numbers have continued on with their downward spiral that commenced at the onset of the COVID-19 pandemic.

Mid-year, there were 12,336 adult prisoners in the NSW correctional system, whilst prior to the onset of the coronavirus, in June 2019, there were 13,403 people inside this state’s prisons, marking a drop of over 1,000 prisoners.

But, in stark contrast, the number of First Nations inmates has continued to rise. Since March, an additional 117 adult Aboriginal people had been incarcerated in state gaols. This led to 3,581 First Nations adults inside in June, as compared with 3,474 back in mid-2019.