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.
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.
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’.'
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.
Whilst we are much relieved that NSW has not experienced an outbreak in our prisons to date, correctional centres remain a ‘high risk’ setting, as identified by the Australian Government Department of Health and we hold concerns in relation to:
- Issues impacting inmates’ capacity to social distance
- The impact on inmates’ mental health and wellbeing as a result of restrictions to visits, lockdowns and reduced access to program.
- Access to mental health care in this time
The letter raises the following questions -
- Could you please provide information as to how social distancing is being enforced and how contact with high risk items such as dishes and laundry is being managed?
- Could you please inform us in relation to how are visits currently being facilitated and are there sufficient facilities to cope with the demand for communication with family? Is there a plan to allow a return face to face visits and if so, what will be the restrictions associated with these visits? In relation to rehabilitation programs, could you please let us know the policy in relation to restrictions, in relation to what programs are currently restricted and if known, when/how will programs resume?
- Could you please let us know whether any inmates have been released early to parole by the Commissioner under the Crimes (Administration of Sentences) Act 1999 (and regulations relating to COVID-19) and whether there is an intention to reduce the prison population further through early release?
Read the full letter HERE.
Letter sent via email to:
The Hon Brad Hazzard - Minister for Health
Peter Severin - Commissioner, Corrective Services NSW
Gary Forrest - CEO, Justice Health
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".
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.
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."
Media coverage: Canberra Times
Careful and sensitive law enforcement is vital as Australia continues its exit from COVID-19 restrictions, according to NSW Council for Civil Liberties spokesman Stephen Blanks.
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."
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.
In the statement we recommend that a number of issues should be considered by Parliament for incorporation into the Act – or for Government action - to more adequately protect the privacy of Australian citizens who have voluntarily participated in this tracking exercise.
The Sydney Morning Herald reported on the statement - 'The civil liberties groups want the government to change the design to ensure personal data is not stored on a central database, arguing this increases the danger from a single cyber attack.'
'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.'
Read the full statement HERE.
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."'
Police officers who conducted strip searches of children hadn't been properly trained and didn't understand the law on what they were doing, a series of landmark watchdog reports has found.
The conduct of NSW Police officers in carrying out strip searches of teenagers at music festivals has been found to be unlawful in a series of landmark reports by the NSW Law Enforcement Conduct Commission.
The reports also criticised the use of police discretion in finding appropriate grounds to justify a strip search; and then the subsequent conduct of the strip search as it applies to people under the age of 18.
The NSW Law Enforcement Conduct Commission said police couldn't justify ordering people to strip naked on a general belief that some music festival patrons would conceal drugs.
NSWCCL Vice President, and convenor of CCL's Police Powers action group, Eugene Scofield-Georgeson, said the report confirms that strip searches of minors at festivals must end. 'These findings are further evidence for halting the practice of invasive police searches of children, led by drug dogs, at music festivals'.
The report comes only days from an announcement that police chief Mick Fuller is to receive an $87,000 pay rise at the height of the coronavirus pandemic, making him one of the state's highest paid public servants.
NSWCCL is crowdfunding for a podcast series, Strip Searches and the Law, that will address rights and privacy for festival goers, and those approached by drug dogs/police. Pre-production of the podcast has been postponed during the COVID-19 health emergency.