NSWCCL News

Statement: Drug Supply Prohibition Order (DSPO) Pilot Scheme Bill 2020

PUBLIC STATEMENT – 9 NOVEMBER 2020

The New South Wales Council for Civil Liberties (NSWCCL) is opposed to the Drug Supply Prohibition Order (DSPO) Pilot Scheme Bill 2020 (the Bill) which provides police with extraordinary powers in circumstances where adequate powers currently exist to search and seize items related to drug activity.

The Second Reading Speech highlights that the purpose of the Bill is to “assist police to gather evidence of drug supply and drug manufacture effectively and efficiently”. The Bill is designed to have a “deterrent effect on a person subject to a DSPO, who may reconsider whether re‑engaging in a lifestyle involving the manufacture or supply of illicit drugs is worth the increased risk of police detection and further conviction”.

The Bill introduces a 2-year pilot scheme enabling police to apply for drug supply prohibition orders in 4 specified local area commands, against a person who is over 18 and has been convicted of “a serious drug offence”.

The orders would allow police to stop, detain and search the person subject to the order and certain vehicles, aircraft or premises, without a warrant. The application may be made by police up to 10 years after the person is convicted of the offence.

The NSWCCL is deeply concerned that the low threshold in relation to the definition of “serious drug offence” operates to cast the net unacceptably wide.  Section 5(2) lists offences under the Drug Misuse and Trafficking Act 1985 that qualify as a “serious drug offence”. The list of offences is too broad. For example, it includes section 25(1) (supply a prohibited drug) but excludes trafficable and small quantities. This means the indictable quantity is the threshold. The indictable quantity for many drugs is not very high. For example, the sale of MDMA, for the amount of 1.25g, and amphetamine is 5 grams.

The Bill provides that a Magistrate may make an order if a person is an “eligible person” and if they are likely to engage in the manufacture or supply of a prohibited drug. In deciding whether a person is likely to engage in manufacture or supply, the court may take into account “information that may be adverse to the application for the order, including steps that the eligible person has taken to stop or reduce the risk of the person committing drug-related offences”.

The Bill must be strengthened to ensure that Magistrates must take into account any information adverse to the making of the order and it should also be mandatory that the Magistrate be advised of and take into account any alternative means of obtaining evidence (such as an application for a warrant).

We are strongly of the view that the 10-year period within which police can apply for an order is too long and places people at risk of being subject to these extraordinary powers for a period that is simply unacceptable. We are also concerned that the lengthy period may also have the unintended impact of interfering with rehabilitation efforts.

Although an order can only be made against someone who is 18, a juvenile conviction can still trigger an application for an order once the person turns 18. Juvenile offences should be excluded. The inclusion of juvenile offences renders young people open to breaches of their civil liberties for acts committed when they were children. The consideration of past juvenile offences is contrary to the well-established principle that rehabilitation is paramount when sentencing young people.

The NSWCCL oppose other aspects of the bill which are unacceptably broad, including:

  • the powers for items to be seized that are not drug related.
  • the power for searches of premises and vehicles in the absence of the owner/controller
  • the power to search premises “at which the person resides” and “premises that the police officer reasonably suspects are owned by the person or under the direct control or management of the person”. Searches should only be allowable where police reasonably suspects the premises or vehicles are being used for an unlawful purpose involving the manufacture or supply of a prohibited drug.

The minimum period of the order is 6 months and the person who the order is made against is unable to apply for revocation within 6 months of service 13(8). This minimum period is far too long and inability to apply for revocation unexplained and unjustified. 

Other persons affected by the orders

The Bill does not give appropriate consideration to the impact the order may have on third persons. Section 7(5) states that an affidavit accompanying the application should identify persons who may be incidentally affected by the order. Police applying for the order should have a positive duty to investigate and put before the court any person who may be affected by the order and demonstrate to the court that they have engaged in investigations relating to third parties. Police should also be required to indicate the age and any vulnerabilities of third parties who may be affected by the orders.

The NSWCCL suggests a comprehensive list of matters to assist police in identifying the sorts of matters which may be adverse.

Notice and procedural fairness

Under this scheme, the person who is the subject of the order does not have to be present or given notice of the search but is only required to be given a written notice after the search. We oppose the lack of notification and a search being conducted without the person being present.

The ordinary rules of procedural fairness do not apply. The Second Reading speech reasons that lack of a notification, presence or submissions by the person against whom a DSPO is sought is to protect confidential criminal intelligence. However, the protection of confidential criminal intelligence needs to be weighed and balanced with the right of a person to be informed of an application made against them to deprive them of the opportunity to be heard.

If the applications remain without notice and in private, we are of the view that consequences for police should be built into the scheme for applications which do not properly disclose matters adverse to the making of the order, including immediate revocation of the order.  

The Bill also provides that there is no entitlement to know the reasons for the decision for making the order. This is unacceptable, anyone who has an order against them should be entitled to know the reason as to why their liberties are infringed upon. Protections can be built in to protect particularly sensitive information.

The NSWCCL supports the requirement that notice be given to an Oversight Commissioner. It is recommended that greater participation for the Oversight Commissioner is provided for including monitoring compliance of the application process, the right to make submissions on the application and monitoring compliance with carrying out the orders.

The Areas where the pilot scheme will operate

We also question the 4 areas which have been nominated as pilot scheme areas:  Bankstown, Coffs-Clarence, Hunter Valley and Orana Mid-Western Local Area Commands.  It is likely the nominated pilot scheme areas will disproportionately impact indigenous people, marginalised groups and people of low socio-economic status.

The NSWCCL acknowledge the harm that illicit substances have on the lives on individuals and their families and the harm they cause communities. Police currently have the powers necessary to investigate the supply and manufacture of drugs. The extraordinary powers provided by this Bill diminish protections and civil liberties of those subject to the order, and third persons who may also be affected by an order. NSWCCL does not support the enactment of this Bill. If the Bill is to pass, significant amendments must be made, in particular to the length of the orders, the breadth of the criteria of “eligible person”, the factors to be taken into account when making the orders by the court and police obligation to inform the court of adverse impacts of the orders.      

See the Bill HERE.

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Statement: NSWCCL welcomes introduction of Climate Change Bill 2020

9 November 2020

NSWCCL warmly welcomes the introduction to Parliament of the Climate Change (National Framework for Adaptation and Mitigation) Bill 2020 (“the Bill”) by the independent member for Warringah Zali Steggall.

We are living in a climate emergency. Calling the multifaceted and serious crises a warming planet is precipitating “global warming” or “climate change” no longer does justice to the urgency of our circumstances. As we gradually move out of one global emergency, the COVID-19 pandemic, we should reflect on the value of rapid, high-quality emergency governance in defeating large scale, complex problems facing our societies. We should ask why we have not seen similar quality governance in Australia with respect to the climate emergency. Sadly, Australia’s climate policy has been hopelessly inadequate for many years and out of line with the actions of many of our key allies and trading partners.[1] Our Prime Minister has recently refused to sign up to a net zero emissions target by 2050, despite increasing international isolation on the issue.[2]

At our 2019 Annual General Meeting, NSWCCL recognised, in line with a growing number of human rights bodies, that climate change is a central civil liberties and human rights issue.[3]

Passage of Ms Steggall’s Bill would be a crucial first step in building political consensus and providing stability, transparency and parliamentary scrutiny in the area of climate policy, which will facilitate the introduction of more ambitious proposals by government. The Bill does not dictate any one climate policy to the government. As framework legislation, it recognises that the executive may require flexibility and choice in the formulation and implementation of climate policy. However, if passed, it would represent an expression of the elected Parliament’s intention to only permit the development of reasonable, science-based climate policy. As is abundantly clear from the science, if Australia is to reach its Paris target of limiting warming to 1.5°C and thus play its part in averting the worst consequences of climate change, our government’s policies and decision-making must conduce to the meeting of a target of zero net accounting emissions by around 2050.[4] All States and Territories have zero net emissions by 2050 targets, as do many leading overseas jurisdictions.

NSWCCL stresses that this legislative model alone is insufficient to meet the exigencies of our climate emergency. Our governments can and should be doing more, including aiming for a target of 45% emissions reduction on 2010 levels by 2030, 100% renewable energy by 2030, not supporting any new coal and gas projects, and funding a just transition to a green economy.

Nevertheless, NSWCCL commends Ms Steggall’s Bill as a good start and will participate in the campaign to secure its passage.

To read NSWCCL’s views on the Bill in March of this year, please view our previous statement at: https://www.nswccl.org.au/climate_change_bill_2020.

For a summary of the Bill, click HERE. 


[1] https://www.atse.org.au/news-and-events/article/emissions-targets-are-we-on-track/;  https://www.theguardian.com/environment/2020/oct/31/net-zero-what-if-australia-misses-the-moment-on-climate-action; https://www.theguardian.com/environment/2020/nov/08/australia-warned-it-could-be-isolated-over-climate-inaction-after-joe-biden-victory

[2] https://www.theguardian.com/environment/2020/nov/08/australia-warned-it-could-be-isolated-over-climate-inaction-after-joe-biden-victory.

[3] https://www.nswccl.org.au/policy_climate_justice_2019

[4] https://www.ipcc.ch/2018/10/08/summary-for-policymakers-of-ipcc-special-report-on-global-warming-of-1-5c-approved-by-governments/

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Submission: NSW Department of Education 2020 Code of Conduct Review

The right to free speech and the right to openly participate in political debate are rights which must be available to all residents of NSW whether or not they are employed by the Department of Education. NSWCCL is concerned that the proposed changes to the Code of Conduct by the NSW Department of Education (the Department) has the potential to reduce the civil liberties of Departmental Employees through a restriction on their rights to communicate through personal social media channels.

In this submission the NSWCCL has chosen to concentrate on question 2 in the discussion paper:

2. Where should the department set standards in respect to recognising an employee’s choice to engage with social media but ensuring the reputation of the department and public sector?

In the opinion of the NSWCCL any standards regarding the use of social media by Departmental employees should ensure their right to free speech including the right to participate in political discourse, by not going further than absolutely necessary in limiting such rights.

The proposed social media guidelines should be restricted to matters where an employee is conducting illegal behaviour, such as committing criminal offences, through their speech. No further burden on free speech is necessary for the public interest, nor justified in this context.

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Submission: Anti-Discrimination Amendment Bill 2020

NSWCCL submission to the Joint Select Committee Inquiry into the Anti-Discrimination Amendment Bill 2020 - 22 August 2020

The NSW Council for Civil Liberties [NSWCCL] considers it is very important to respond in some detail to this Joint Select Committee’s inquiry into the Anti-Discrimination Amendment (Religious Freedoms and Equality) Bill 2020 [the Bill].

The issues encompassed by this Bill religious freedoms and protection from discrimination on the grounds of religion - are of great significance in a democracy such as ours. They are also extremely complex and potentially deeply contentious issues. Legislation on human rights must always be carefully considered and balanced, and this is especially so in relation to religious rights and protections. If all rights are not considered in a fair and balanced way the outcome is likely to be discriminatory and harmful to some groups and individuals and to over-privilege the rights of others.

** Dr Lesley Lynch, co-convenor of the NSWCCL Civil and Human Rights Action Group appeared at the first public hearing for the Joint Select Committee on the Anti-Discrimination Amendment (Religious Freedoms and Equality) Bill at 2pm on Friday 23rd October, 2020.

View the full submission


 

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Policy: Human Rights and Technology

2020 NSWCCL AGM

Item 8.3        Policy on Human Rights and Technology

Human Rights and Digital Technology

Australia has experienced an exponential uptake and increased sophistication of surveillance methods, AI informed decision making, and other modern technologies collecting vast amounts of data (Digital Technology). At the same time, laws protecting individuals against breaches of their privacy rights have not kept pace with those technologies. There has been a “drift towards self-regulation in the technology sector, as laws and regulators have not effectively anticipated or responded to new technologies” [1]. While there will always be some degree of regulatory lag with regards to policy design and implementation, capacity-building programs should specifically target policy makers to ensure the development of a policy framework that is remains relevant as technology progresses.

NSWCCL acknowledges that “digital technologies have the potential to facilitate efforts to accelerate human progress, to promote and protect human rights and fundamental freedoms” but also that “the impacts, opportunities and challenges of rapid technological change […] are not fully understood”.[2] In fact, surveys have shown that community trust in new and emerging Digital Technologies has been diminishing, for example, with most Australians concerned about their online privacy.[3]

Safeguards are necessary to ensure that the liberties and rights of Australians are not unreasonably curtailed by Digital Technology. As a society, we need to avoid the possibility that people feel unable to go about their normal business because they are constantly being watched or tracked.  Once collected, used and stored by third parties, personal private information becomes increasingly difficult to protect and regulate. Often that personal private information is collected or used in a manner that is without the knowledge, or consent, of the individual.

NSWCCL policy, in the face of the expansion of Digital Technology, includes:

  1. A national strategy on new and emerging Digital Technologies that promotes effective regulation, consistent with Article 22 of the EU General Data Protection Regulation (GDPR).

    Australian government policy on Digital Technology has tended towards self-regulation which is also, inevitably, fragmented. The Australian Productivity Commission has called for fundamental, systematic change in the way governments, businesses and individuals handle data.[4] As a starting point, the substance of Article 22 of the GDPR, should be adopted by Australian legislators, as best practice. Article 22 of the GDPR provides for the right not to be subject to a decision based solely on ‘automated processing, including profiling’ which has a legal or significant impact on the individual.

  2. A National Bill of Rights. One of the most significant gaps, from a policy perspective, with regards to the protection of human rights, data collection and AI informed decision making, is the absence of legislated human rights protection, particularly through a national Human Rights Act or charter. As a corollary, international policies and treaties around human rights and Digital Technology protection need to be more effectively implemented.
     
  3. Implementation of legislative framework with a human-rights centred approach.

    Australia needs “greater statutory clarity regarding the ambit of responsibility and consequence of automated decision making”.[5] The overarching framework should provide for Digital Technology being designed and applied around principles of transparency, accountability, responsibility, mitigation of risk, fairness and trust. It should provide for clear and enforceable laws as a main means to ensure and promote an accountable and responsible use of Digital Technology, aiming at fostering innovation while also protecting human rights.

  4. Accountability of institutions for decisions that are made using Digital Technology and liability for the consequences of those decisions.

    Exclusion and discrimination can be exacerbated  by the “feedback loop of injustice”.[6] For example, if AI is tasked to make a decision it will base its decision on past data, and if a person if affected that is part of a group sharing a characteristic such as race, age, gender or other, it is therefore likely to replicate past imbalances and injustices that that group was involved in.

    This problem concerns society defining areas, such as capital distribution (who gets the home loan?), employment (who gets the job?), and criminal justice (who goes to jail?). While the public discussion of the human rights implications of Digital Technology has tended to focus on the right to privacy and non-discrimination, other areas are also engaged, such as the right to equality, the right to work, the right to justice, and the right to health.

  5. Notification to the individual impacted when Digital Technology facilitated decision making occurs.

    The Council of Europe, Commissioner of Human Rights, considers that those who have had a decision made about them by a public authority, that is solely or significantly informed by the output of an AI system, should be promptly notified.[7] In the context of public services, especially justice, welfare, and healthcare, the individual user needs to be notified in clear and accessible terms that an AI system will be interacting with them and that there is hasty recourse to a complaints person. Specific information about processing, purpose and the legal basis for processing, should be available to the individual whether that information is retrieved directly, or from other sources.

  6. A Consumer Protection approach to Consent. While consent of the user is a necessary condition for the use and decision-making processes of Digital Technology, it is not sufficient. A user should not be able to consent to waive rights under consumer law; laws which provide that the data controller must do certain specified things. Where consent is required and sought, that consent needs to be express, voluntary, specific and unambiguous;[8] not bundled consent, nor opt out. Any changes in use of information collected or stored should prompt a requirement for renewed express consent.

  7. Reform to more easily assess the lawfulness of decision-making by Digital Technology. Accessing technical information used in decision-making or having open source AI are methods for doing so.

  8. Easily accessed complaints and independent appeal processes, and remedies for the benefit of the adversely affected individual user.

    Digital technologies are still developing and high error margins need to be accounted for. At any stage, a user affected by automated decision making should have the right to human intervention.[9] The appeal system(s) that will need to be established must be easily and cheaply accessible, so that those in vulnerable positions have the chance to contest contentious decisions.

  9. A moratorium on the use of the technology should be implemented in any situation where the use of a technology in a specific situation is not regulated clearly enough by the policy and/or legislative framework.

    Digital Technology needs to be continuously assessed for accuracy and reliability, as software behind, for example, facial recognition can still show high error margins and substantial system bias. Misidentification and bias affecting citizens have led to various city and state governments, international organisations and software companies, to either impose or call for a moratorium on the technology’s use, until its functionality and the laws around it meet certain conditions.[10]

  10. The establishment of a Digital Regulatory Body (DRB) tasked with developing policies around the design and application of big data, AI informed decision-making systems and advanced surveillance technologies. Its powers including:

    a) Enforcement of policies. The DRB should be tasked with supervising compliance with data protection regulations by government and the private sector. [11] The powers invested in the body, like European models, should include investigation and access to premises and data processing equipment, for the purposes of compliance with regulations. There should be authority to impose a fine and/or a ban on processing.[12] 

    b) Regular auditing of public and private organisations’ systems to ensure high rates of policy compliance. Regular auditing also serves to detect potential bias in Digital Technologies. The DRB, given the appropriate expertise, should be able to keep intellectual property confidential and yet recognise where algorithms reinforce social differences and discrimination.

    c) Advocacy, encouraging laws and practices around technologies to be human rights compliant and used for the public good. Soft measures could take the shape of offering targeted education and training for decision makers and leaders, in the Australian private and public institutions, to build capacity around existing and new laws in the context of new technologies.

    d) Fostering innovation and technological progress. In order to achieve both human rights compliance and technological innovation and progress, the regulatory body could be tasked with the implementation of ‘regulatory sandboxes’. In these regulatory sandboxes “new products or services can be tested in live market conditions but with reduced regulatory or licensing requirements and exemption from legal liability, and with access to expert advice and feedback”[13].

    e) Research into making AI more privacy friendly. Privacy friendly AI systems can more easily comply with regulations, use anonymisation techniques and explain how data is processed.[14]

  11. A limited statutory cause of action to sue for serious breach of privacy, where there is a reasonable expectation of privacy. The existing privacy legislation at Commonwealth and State levels does not provide protection, or remedy, for many kinds of invasion of personal privacy. Any cause of action needs to be broadly formulated to capture future forms of privacy infringement.[15]

    In 2019, the Australian Competition and Consumer Commission recommended that a new statutory cause of action be created to cover serious invasions of privacy with the aim to reduce the “bargaining power imbalance” between individuals and digital platforms.[16]

Resolution

That the proposed policy on Human Rights and Technology be adopted.

Moved at the NSWCCL AGM October 21st 2020 by: Michelle Falstein

Seconded by: Stephen Blanks


[1] Farthing, S., Howell, J., Lecchi, K., Paleologos, Z., Saintilan, P. and Santow, E., 2019. Human Rights and Technology: Discussion Paper. <https://humanrights.gov.au/sites/default/files/document/publication/techrights_2019_discussionpaper_0.pdf> [Accessed 13 September 2020] at p.38

[2] UN Human Rights Council, 2019. New and emerging digital technologies and human rights: 41st session. [online] Available at: <https://documents-dds-ny.un.org/doc/UNDOC/LTD/G19/208/64/PDF/G1920864.pdf?OpenElement> [Accessed 13 September 2020] at p.2

[3] Goggin, G., Vromen, A., Weatherall, K., Martin, F., Webb, A., Sunman, L., & Bailo, F. (2017) Digital Rights in Australia Departments of Media Communications, and Government and International Relations, Faculty of Arts and Social Sciences, and the University of Sydney Law School, University of Sydney. <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3090774 >accessed 25 Feb 2020

[4] Australian Productivity Commission (2017) Data Availability and Use Report, p. 12 in Goggin, G., Vromen, A., Weatherall, K., Martin, F., Webb, A., Sunman, L., & Bailo, F. (2017) Digital Rights in Australia Departments of Media Communications, and Government and International Relations, Faculty of Arts and Social Sciences, and the University of Sydney Law School, University of Sydney. pp21-22 <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3090774 >accessed 25 Feb 2020 

[5] Murray, A., 2019. Legal technology: Computer says no …but then what. The Proctor, 39(8), 48-49.

[6] Eubanks, V., 2017. Automating inequality: How high-tech tools profile, police, and punish the poor/Virginia Eubanks. New York, NY: St. Martin's Press.

[7] Council of Europe Commissioner of Human Rights (May 2019) Unboxing Artificial Intelligence: 10to protect Human Rights https://rm.coe.int/unboxing-artificial-intelligence-10-steps-to-protect-human-rights-reco/1680946e64; Also Art 13 GDPR

[8] The Norwegian Data Protection Authority (January 2018) Artificial Intelligence and privacy Datatilsynet, p.29

[9] Art 22 GDPR

[10] Conger, K., Fausset, R. and Kovaleski, S. F., 2019. San Francisco Bans Facial Recognition Technology. The New York Times. [online] 14 May. Available at: <https://www.nytimes.com/2019/05/14/us/facial-recognition-ban-san-francisco.html> [Accessed 14 September 2020]; Kelion, L., 2019. MPs call for halt to police's use of live facial recognition. BBC. [online] 18 Jul. Available at: <https://www.bbc.com/news/technology-49030595> [Accessed 14 September 2020]; Larson, N., 2020. UN urges 'moratorium' on facial recognition tech use in protests. [e-book]: AFP. <https://news.yahoo.com/un-urges-moratorium-facial-recognition-tech-protests-142542401.html> [Accessed 26 June 2020].

[11] Shaping Europe’s digital future -Report/Study (8 April 2019) Ethics guidelines for trustworthy AI <https://ec.europa.eu/digital-single-market/en/news/ethics-guidelines-trustworthy-ai>

[12] The Norwegian Data Protection Authority op.cit. p.23

[13] Op.cit. Farthing, et al., 2019 p.118

[14] The Norwegian Data Protection Authority op.cit. p.28

[15] Witzleb, Normann (2011) A statutory cause of action for privacy? A critical appraisal of three recent Australian law reform proposals 19 Torts Law Journal 104-134 DOI: 10.13140/2.1.3159.1684

[16] Australian Competition and Consumer Commission (June 2019) Digital Platforms Inquiry- Final Report <https://www.accc.gov.au/system/files/Digital%20platforms%20inquiry%20-%20final%20report.pdf>

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Policy: ICAC role and funding

2020 NSWCCL AGM

Item 9.2 Policy on ICAC

 NSWCCL strongly affirms the crucial role of the Independent Commission Against Corruption in NSW. As Richard Ackland writes, the episode currently playing out with respect to Daryl Maguire, and incidentally, Gladys Berejiklian, is “a timely reminder of the disinfecting sunlight that ICAC is capable of shining”.[1] To quote our President, “while the present proceedings may not encourage federal parliamentarians to move forward more speedily with a federal ICAC, they are certainly encouraging the electors to push for one.”[2]

NSWCCL deplores the recent cuts to ICAC’s funding, which Chief Commissioner Peter Hall QC warned in 2019, “have an immediate and serious effect on the commission’s frontline services, and therefore its ability to fight corruption.”[3] ICAC should be funded independently of the usual funding process for government agencies; it is not like any other government agency. Such changes would help temper the influence which the Executive can potentially wield to hinder the fight against corruption in NSW.

Resolution

That the proposed policy on ICAC be adopted.

Moved at the NSWCCL AGM October 21st 2020 by: Jared Wilk


[1] https://www.theguardian.com/commentisfree/2020/oct/13/nsw-would-be-a-more-unsavoury-place-without-icac-we-need-a-real-federal-anti-corruption-body

[2] https://www.smh.com.au/national/stand-aside-premier-while-this-cloud-hangs-over-you-20201015-p565dj.html

[3] https://www.theguardian.com/australia-news/2019/oct/21/icac-head-says-funding-cuts-will-have-immediate-and-serious-effect

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Policy: Visa cancellation on character grounds

2020 NSWCCL AGM

Item 8.2        Policy on visa cancellation on character grounds.

Preamble

Section 501 of the Migration Act enables the Minister for Home Affairs or his delegates to cancel the visa or to refuse a visa of any person who is decreed to have failed what is termed ‘the character test’.  The grounds on which this can be done are many:  they include inter alia serving a total of 12 months’ imprisonment; conviction for any offence, no matter how inconsequential, while in immigration detention; being a person who has been or is a member of a group or organisation, or has had or has an association with a group, organisation or person, and that group, organisation or person has been or is involved in criminal conduct; being a person whose criminal or general conduct is such that the person is not of good character; or having been ordered by a court to participate in a drug rehabilitation scheme.  If a court has found a person guilty of an offence against a child, or found a charge against the person proved for an offence against a child, whatever the penalty or  even if the person was discharged without a conviction, they fail the character test.  Persons can also be found to have failed the character test if there is only a risk that that they may engage in criminal conduct, vilify a section of the Australian community,  or incite discord in a section of that community.   Harassment, which is defined as including threats to the property of a person, also constitutes a failure of the character test.

Persons are taken to have been sentenced to twelve months of imprisonment if they have received sentences for separate crimes which add up to twelve months or more, even when a court has ordered that two or more sentences be served concurrently.

If the Minister suspects one of these conditions apply to a visa holder, he may cancel the person’s visa, and the rules of natural justice apply.  Such decisions are subject to review by the Administrative Appeals Tribunal.  But the Minister is able to overrule the Tribunal.

But if he thinks it is in the national interest to cancel the visa as well, the rules of natural justice do not apply.  But under subsection 501 (3A), if the Minister is satisfied (as opposed to suspecting) that the character test has been failed, he must cancel the visa, and the rules of natural justice do not apply. 

Section 500A enables the Minister to refuse a Safe Haven visa on similar grounds.  So refugees are explicitly included.

Under section 499 of the Act, the Minister the Minister may give written directions  to a person or body having functions or powers under this Act if the  directions  are about the performance of those functions or the exercise of those powers. 

Under section 116, visas may be cancelled where they have been granted on the basis of misinformation; but also where  the presence of its holder in Australia is or may be, or would or might be, a risk to the health, safety or good order of the Australian community or a segment of the Australian community; or the health or safety of an individual or individuals.

In many respects, this legislation is unjust.  A person who has served their time after a criminal conviction should not be subjected to a second penalty or other forms of harm; and though the High Court has found that having a visa cancelled and subsequent detention do not count as a punishment, the effect on the person is the same as if it was.  A person who has reformed while in prison should not be treated as a risk to the Australian community.  A person who has been found by a parole board not to be a risk should not be treated as though they are such a risk.  It is unjust to deprive a family of a close member on whom they depend for financial or emotional support.  And while there is a case for sending persons who were criminals before they entered Australia back to the countries where they became criminals, it is not just to send back people who became criminals during their time in Australia.  

The ability of the Minister to overrule the AAT is contrary to the rule of law, and should be abolished.  

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Assange: Extradition hearings, freedom and democracy

The proposed extradition of Julian Assange
The extradition hearing for Julian Assange continues in London. Assange is currently being held in Belmarsh Prison, a category A jail on the outskirts of London, where men convicted of terrorism offences are held. He has limited access to his legal counsel, relegated to sit behind a glass window in the dock. For Assange and his family, the situation is dire. 

You can follow the hearing extradition updates, through the writings of Historian, Former Ambassador and Human Rights Activist, Craig Murray, 'Your Man in the Public Gallery', HERE.

Murray feels that the only possible conclusion from recent testimony (on 22nd September), is that 'the performance of the representative of the United States Government was, in and of itself, full and sufficient evidence that there is no possibility that Julian Assange will receive fair consideration and treatment of his mental health issues within the United States system. The US government has just demonstrated that to us, in open court, to perfection.'

Public support for Assange
Every week day at Sydney's Town Hall from 4-6pm, Assange supporters hold a vigil/demonstration calling to "Free Julian Assange". For the past 43 weeks, supporters have gathered every Friday, but as momentum builds at the Old Bailey, so too supporters have ramped up their vigil to every weekday until the extradition trial ends in the UK. NSWCCL members/supporters have been invited to take part to show solidarity.

Numerous online petitions are circulating to Free Assange, Stop the Extradition and Bring Assange Home. A Change.org petition started by Brisbane resident Philip Adams in 2019, now has almost 525,000 signatures. 

A great number of notable journalists have spoken in support of Assange and confirmed what is at stake for free speech and for journalists across the world. Quentin Dempster notes;

'All the issues that so concern us about our democratic freedoms in this the age of pandemic, terror and mass cyber surveillance, and now,  additionally with a heightened fear of war: with China, with North Korea, with Iran, with Russia, are being tested through the extradition proceedings against Julian Paul Assange... And if at the Old Bailey, Julian Assange is extradited to the United States to be jailed for life for informing us about war crimes, misjudgements, incompetence and atrocities, we democracies will be destroying our own professed values.'

Bringing allies from across the spectrum together, the Parliamentary Friends of the Bring Julian Assange Home Group is chaired by Andrew Wilkie MP and George Christensen MP. Andrew Wilke states, "If we want to guarantee every Australian the right to a fair trial, and every journalist the right to report official misconduct, we must oppose this extradition and allow Assange to return to Australia." The Australian Assange campaign has a tool to help you write to your Federal Member to request their support for this Parliamentary group. 

NSWCCL advocacy for Assange
As we noted in April 2019, after Assange was arrested, the prosecution of Assange poses a threat to other journalists who encourage sources to leak information, and then help them protect their anonymity. In addition to the life of an Australian journalist, there is a great deal at stake.

In March this year, NSWCCL wrote to Prime Minister Scott Morrison, a public letter copied to all Members of Parliament.

NSWCCL calls on the Australian Government to intervene to protect the rights of Julian Assange who is facing the increasingly likely prospect of his extradition to the USA to face trial on 17 offences under the Espionage Act 1917 and one ‘conspiracy to commit computer intrusion’ charge and almost certain incarceration in a high security prison for the rest of his life.

Assange’s current position is desperate and dangerous. His mental and physical health have been seriously compromised. He is imprisoned in a high security London gaol with limited capacity to communicate with his legal team. His extradition proceedings in London give the appearance of bias and an almost certainly predetermined outcome. It appears that he has been, and will continue to be, unfairly treated within UK courts. If he is extradited to the USA, he will face charges which will cumulatively expose him to 175 years’ imprisonment.

The treatment of Assange by the US and the UK governments since 2010 has been unjust, cruel and clearly politically motivated. 

We also attended the Free Assange Rally in Sydney in February 2020, where Dr Lesley Lynch, Convenor of our National Security and Counter-Terrorism Action Group, spoke alongside journalists, activists and supporting organisations calling for an end to Assange's detainment and his return to Australia. 

Dr Lynch pointed out that in 2013, at the NSWCCL AGM, we formally recognised Assange (and Chelsea Manning and Edward Snowden) as "courageous, global champions of democracy who have made, at great personal cost, extraordinary contributions to civil society by challenging the excessive secrecy of the state".

We condemned 'the unprecedented and ferocious attack on and relentless pursuit by the USA and other states of Assange and Manning and Snowdon as traitors and spies'. We noted: 'These attacks pose a global threat to the capacity of a free press to inform the people - and to the citizens’ right to know what governments are doing in their name.'


*In June 2017, Australian citizen James Ricketson, was sentenced to six years in prison in Cambodia for espionage. The Australian government intervened in Ricketson's case when it became clear, on the basis of evidence presented in court, that Ricketson was not a spy, but a filmmaker and journalist.

James has himself written to the 'Members of the Australian Parliament' urging them to speak out in support of Assange - 'If you believe that Assange is not a spy, will you speak out, as some of your fellow parliamentarians have?'

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2020 Winners NSWCCL Awards for Excellence in Civil Liberties Journalism

Congratulations to the winners of NSWCCL's 2020 Awards for Excellence in Civil Liberties Journalism. The standard of those nominated has been exceptionally high, which made the task of the judges so much more difficult.

From the nominees, the judges named shortlists of 3 in the Young Journalists category and 4 in the Open category. We compliment all entrants on their work and hope that you will continue in similar vein in the future.

The winner of the Young Journalist's category: Luke Henriques-Gomez of The Guardian for a series of articles on the Robodebt scheme.

'This young journalist’s articles on the Robodebt debacle exposed federal governmental policy inadequacy and ministerial failure regarding the use of technology and data management in social support programs. They opened a window on current approaches to welfare policy and their failure to observe the principles of democratic governance by being evidence-based and according procedural fairness to affected persons. This failure and indifference led to official cruelty which the articles helped to change by opening up broad debate on the issues raised.'

Congratulations Luke.


 

The winner of the Open category is shared: Kate McClymont and Jacqueline Maley of the Sydney Morning Herald for their piece on the Dyson Heydon affair.

'These journalists’ exclusive article on the Dyson Heydon affair demonstrated how deeply entrenched attitudes towards the abuse of women remain in our social and employment structures. They also raised wider critical questions concerning professional transparency, governance and power in the legal profession. This was courageous reporting that was respectful of sources and affirmed freedom of the press in Australia.'

Congratulations to Kate and Jacqueline.

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NSWCCL 2020 Fundraiser: First Nations justice webinar

NSWCCL’s online First Nations justice panel discussion was held on 11 September 2020, and featured Judge Myers AM, Sarah Hopkins, Teela Reid and NSWCCL President Nicholas Cowdery AO QC. Our panelists generously shared their knowledge, expertise and heart in speaking about over-incarceration of Indigenous Australians, systemic racism, 'just' policing, the Uluru Statement from the Heart and the black lives matter movement.

The panel discussion was a call to action in relation to the implementation of the recommendations of the ALRC’s report “Pathways to Justice”, including a focus on the crucial need for a commitment to justice reinvestment and specialty courts (such as the Walama Court in NSW).

The NSWCCL First Nations Justice panelists:
- Nicholas Cowdery AO, QC, President of the NSWCCL
- Judge Myers AM, lead Commissioner of the ALRC’s inquiry into Incarceration rates of Aboriginal and Torres Strait Islander Peoples
- Sarah Hopkins, Co-Chair of Just Reinvest NSW and the Managing Solicitor of Justice Projects at the Aboriginal Legal Service ACT/NSW
- Teela Reid, Wiradjuri and Wailwan woman, lawyer and human rights activist

The webinar discussion was moderated by the 2019 winner of the NSWCCL Award for Excellence in Civil Liberties Journalism, Richard Ackland AM. The 2020 NSWCCL Awards for Excellence in Civil Liberties Journalism were also announced.

Watch the panel discussion with the President's speech below or a trimmed version for educational institutions HERE:

Some useful links following the panel discussion -

Just Reinvest NSW

Aboriginal Legal Service NSW/ACT

Justice Reform Initiative


Not a member of NSWCCL?

A strong membership adds credibility to our advocacy on civil liberties issues and as a determinedly independent organisation, NSWCCL relies heavily on membership fees to fund our activities. Become a member of NSWCCL.

If you would like to make a donation to NSWCCL you can do so HERE.

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