The Green Left reports that an election to be held on the 4th of December in the City of Sydney electorate will fail the definition of democracy, the second such election since a new law was introduced in 2014.

'This controversial law allows businesses in the City of Sydney two votes, by allowing the business to appoint two people from outside the local area to vote on its behalf. The NSW Council for Civil Liberties described this as “profoundly undemocratic”.'

Read the full article: Residents push for an end to rigged City of Sydney vote

NSWCCL wrote to David Shoebridge MLC to express support for his draft Children (Criminal Proceedings) Amendment (Age of Criminal Responsibility) Bill 2021.

Raising the age of criminal responsibility to fourteen years and prohibiting the exposure of all children under the age of sixteen to the detention system will fundamentally improve the rights of children in New South Wales and Australia’s compliance with its obligations under the Convention on the Rights of the Child.

We have asked some questions about the draft bill to make sure it covers all bases for keeping children out of custody, but the bill would be a great step forward for children’s rights in New South Wales if it were to pass.

You can have your say about the draft bill here (link no longer available).

More information

• Our letter to David Shoebridge
• Our policy on the minimum age

Adopted at the 2021 AGM

For the rest of the COVID-19 pandemic, and in a future crisis, the NSW and Commonwealth parliaments ensure that our system of crisis law-making is fit for purpose, including by:

• embedding human rights scrutiny into all emergency responses, including through the operation of a charter of human rights;
• subjecting all delegated legislative crisis powers to legislative tests for likely effectiveness, necessity, and proportionality;
• eliminating the presence of poor regulation-making practices such as Henry VIII clauses or ‘skeleton legislation’ in crisis legislation;
• mandating that changes to the law that seriously affect our core civil and human rights are enacted in primary legislation; 

Adopted at the 2021 AGM

The NSWCCL firmly believes that the Australian community, inclusive of federal, state and territory governments, is collectively responsible for promoting and supporting the welfare of children and young people to allow them to reach their potential and transition into productive and engaged citizens. NSWCCL strongly supports the ‘Raise The Age’ campaign in calling all Australian governments to raise the age of criminal responsibility for children to 14 years.

The Guardian reports that a coalition of legal, social justice and Aboriginal groups (including NSWCCL) says the New South Wales government should cease prosecuting Aboriginal people for exercising their cultural fishing rights.

'The NSW Council for Civil Liberties president, Pauline Wright, said the government’s attitude was indicative of “systematic racism”. “If the aim was truly to protect the marine environment, they wouldn’t be allowing commercial fishing to expand at the same time as prosecuting Aboriginal fishers,” she said.'

• Read the full article: Aboriginal groups call on NSW government to end cultural fishing prosecutions
• More information: Local NSW fishermen are being prosecuted under State law contrary to their Native Title rights NSWCCL 15 Sept '21

A COVID out break inside immigration detention centres was a disaster waiting to happen. The Australian Government and Border Force cannot claim they had not been warned, nor that they had insufficient time to respond.

Civil rights organisations, including the NSWCCL have, for months, been bringing our concerns to the Minister and his Department, however our representations fell on deaf ears. 

Sydney Criminal Lawyers writer Paul Gregoire comments that reports of police officers wearing symbols associated with white supremacy or being captured on camera making symbols conveying the same racist message, have been increasing throughout a number of Australian jurisdictions over the past couple of years.

He examines recent incidents across Australian jurisdictions and covers our recent letter to the Police Minister on this topic (we are still waiting for a response).

Read the full article: Calls on Police Minister to curb officers flaunting insignia linked to white supremacy

Update 2 Dec 2021: NSW Government must recognise Aboriginal cultural fishing in line with parliamentary support

Released by NSWCCL with the Nature Conservation Council and Oxfam Australia 

The NSW government has been condemned for its targeting of Aboriginal fishers following revelations that its unjust actions, which have led to massive over-representation of First Peoples in criminal penalties, coincides with giving an increased take to commercial operators.  

A coalition of concerned leaders and interest groups has called for an immediate moratorium on prosecutions after learning of a strong bias against Aboriginal fishers in NSW crime data and the recent decision to increase the commercial take.   

Aboriginal people make up 4 per cent of people living on the South Coast, but they account for 80 per cent of jail terms for fisheries offences since 2009.  

Update 29 October: The below limits are still in place with an additional 1000 person cap on COVID safe community sports (latest updates here).

Under the latest Public Health Order, protests are limited to 50 people - or 200 if the protest is COVID safe.

Meanwhile, ticketed events of up to 3000 people are permitted.

Our right to protest should not be limited in this way: if it's safe for 3000 people to attend commercial events, larger COVID-safe protests are surely safe too.

The Migration and Citizenship Legislation Amendment (Strengthening Information Provisions) Bill is one of the most pernicious bills ever to be presented to the Australian Parliament, which has been criticised by both the Joint Committee on Human Rights and the Senate Standing Committee for the Scrutiny of Bills.

Under this bill, information used by the Minister for Home Affairs to cancel a visa or to take away a person’s citizenship can be declared protected information, meaning the affected person would not be able to challenge this information. 

If the bill were to be passed:

• People who have lived in Australia since infancy will be sent to countries where they know nobody and have no means of support. (This already happens).
• People will have their visas cancelled, and be put in detention, possibly for many years. (This already happens too). Yet they will not be criminals and they will have no way to answer the accusations against them. 

The New South Wales Council for Civil Liberties thinks that the bill is unjust, and should never have been brought to parliament. We wrote a letter to the Crossbench Senators urging them to vote against the bill.

More Information: read our letter to the Crossbench Senators

The NSW Council for Civil Liberties wrote to the Crossbench Senators urging them to vote against the reintroduced Migration Amendment (Strengthening the Character Test) Bill. 

If passed, this bill will further expand the grounds on which a person’s visa may be cancelled under section 501, especially on character grounds. This would include where a non-citizen has been convicted of a crime punishable by over two years’ imprisonment, regardless of when the person was actually sentenced to a term of imprisonment. This bill is a disproportionate response to visa holders who have committed minor crimes.

1. This bill will subject people who are of no danger to society to the rigours of indefinite detention, or to being deported. Families will be split. There is no evidence that “the community” would want such outcomes.
2. The bill would allow the Minister the discretion to cancel or refuse to issue a visa to a person who has been convicted of a designated offence but who may have received a very short sentence, or no sentence at all.
3. The bill presupposes that careful decisions of the courts, made after proper process, input by experts and the experienced judgement of judges, are inferior to decisions made by the Minister with the aid of his Department. Sentences, after all, take account both of the seriousness of the crime and of the desirability of deterrence—both of the individual and of others. That is, they take into account the dangers to the community.
4. The bill contains no exceptions for children.
5. The bill ignores the processes of rehabilitation.
6. A determination that a person fails the character test, depending on how it is made, means either that their visa must be, or may be, cancelled or refused. There right to merits review is available only in some cases. (The courts can only deal with errors of law.)

More information: read our letter to the Crossbench senators

And the winners were:

• Excellence in civil liberties journalism - open: 
  Paul Gregoire 
• Excellence in civil liberties journalism - young journalist: 
  Kate Allman
• The Kafka award for the most egregious public statements or acts offensive to civil liberties and human rights:
  Clubs NSW for demanding via their lawyers that an ex-employee whistleblower facing financial ruin over court costs stop crowd funding to finance his court case and return donations already received - or face further court action.

This is a transcript of a presentation given by President Pauline Wright at a Centre for Public Integrity webinar.

There are a number of civil liberty and rule of law concerns raised by the prosecutions of Witness K and Bernard Collaery including:

• Freedom of speech in the public interest
• Open justice 
• Abuse of the notion of ‘national security’
• The rule of law – everyone is equal before the law and no-one is above the law
• Independence of the legal profession

The 58th Annual General Meeting of the New South Wales Council for Civil Liberties (NSWCCL) will be held electronically, in accordance with Article 29(1) of the Constitution and as approved by the Committee, at 6pm on Wednesday 27th October 2021.

Writing for Mondaq, Paul Gregoire notes one positive outcome of the pandemic is that it's brought human rights and civil liberties to the fore.

"For some in the community, the fact that rights protections in this country are fairly weak might come as a surprise. For others – such as First Nations peoples, refugees and asylum seekers – this was well understood long before COVID-19 ever disembarked at an Australian airport."

"Civil liberties advocates have been warning of a general erosion of rights that's been occurring due to the passing of numerous national security bills over the past two decades, with the last such piece of legislation – the Identify and Disrupt Bill – being passed during the extended NSW lockdown."

The article notes NSWCCL's clear support for those who do not wish to get a vaccine, balanced by its recognition that a requirement to demonstrate vaccine status to, for example, cross a border is not unreasonable in the circumstances.

More information:

• Read the full article: COVID-19 restrictions and the Civil Liberties - Human Rights quagmire Mondaq 6 Oct '21
• Vaccine passports NSWCCL 5 Aug '21

Our President Pauline Wright was a guest on today's Hack for an interesting discussion about vaccine passports: how will they work? What about our privacy and rights?

Listen here

It goes without saying that it's unacceptable for police officers to wear symbols associated with white supremacy on their standard issue Police uniforms.

However, over the past couple of years, our members have observed, consistent with increasingly frequent media reports, NSW Police Officers displaying symbols and icons associated with white supremacy.

Today we wrote to the Police Commissioner and Minister asking them to explain:

1) What policies and processes are in place to respond to members of the NSW Police Force who are found to be displaying symbols and icons associated with white supremacy?

2) What steps are being taken to ensure that NSW Police Force members do not hold white supremacist ideologies, participate in white supremacist groups or display their symbols or icons?

More information: read our letter
(The photos sent with our letter showed identifying details of the officers in question - you can see cropped versions on the right of this page).

We're looking at doing more work around displays of white supremacy and NSW Police as a result of recent complaints, so please get in touch if you have examples or stories that you could share: [email protected]

Political columnist Michael Moore examines planned legislation to ensure definitions of cabinet includes the national cabinet, and therefore keep its deliberations secret. 

"While a small number of protestors are using the streets and violence to make a point about their right to freedom from vaccination, much more important civil liberties are being eroded. Should this legislation be successful, the reasons behind decisions taken in the “national cabinet” will remain secret for 30 years."

He quotes CCL: 

“This cannot be seen as anything other than a blatant and cynical attempt to avoid transparency by including within the definition of cabinet something that cannot properly be called a cabinet at all.” (Read our full piece The 'National Cabinet' should not be above scrutiny)

Read the full article: More secrets being hidden in national cabinet

Eric Meijer reports that Australia's spreading pilot programs to let travelers quarantine in the privacy of their own homes are drawing criticism from some quarters for invading that privacy.

"Across Asia and elsewhere, countries have deployed various technologies to help fight COVID-19, from contact tracing apps to QR-code check-ins for entering establishments. But some see Australian authorities' use of facial recognition and geolocation to enforce home quarantines as a step down a slippery slope, even as efforts to reopen borders come as a relief."

The article quotes NSWCCL's Secretary Michelle Falstein:

"We would be concerned greatly at how facial recognition information is shared amongst other government departments, how it's stored, how easily it's hacked, a number of issues about how the information is dealt with and how it's also used for other purposes. So those sorts of things are really not covered off under legislation in this country at the moment."

Read the full article: Australia border relief brings unease over 'Orwellian' quarantines

Chip Le Grand asks whether in our singular determination to protect life from the spread of a virus, we were at risk of losing something just as precious. 

This opinion piece for The Age quotes our Victorian sister organisation"

"Liberty Victoria president Julia Kretzenbacher says the pandemic has exposed the weakness of Australia’s human rights protections and the toothless nature of Victoria’s 15-year-old human rights charter, which doesn’t enable individuals to sue for damages when their human rights are unlawfully breached."

"Kretzenbacher says a central problem with the Victorian government’s public health response is the lack of transparency surrounding its decisions and their compatibility with human rights. She says it is difficult to draw a line between public health orders which are reasonable and those which are not because of the lack of information made publicly available about them."

It also notes that "The NSW Council of Civil Liberties has also warned about the overreach and disproportionality of stay-at-home orders imposed on some of Sydney’s most ethnically diverse suburbs".

Read the full article: Freedom, interrupted: Will the liberties we lost to COVID be regained?