Recent incidents in Sydney indicate that NSW Police don't uniformly understand and respect the role of Legal Observers - that must change.

Police have obstructed Legal Observers; instructed them to direct protestors; directed one to stop filming; and questioned their presence at a protest. 

A Swiss perspective on the friendlyjordies arrest:

"In Australia, politicians use anti-terror law to muzzle critics: an Australian comedian is currently experiencing first-hand how the anti-terror law can also be used."

NSWCCL Treasurer Stephen Blanks tells SRF that "we have a legal system which is weak on protecting legal rights and particularly weak on protecting free speech".

More information:

• Australien: «Die Polizei macht die Schmutzarbeit für die Politik» Schweizer Radio und Fernsehen (SRF) 2 Aug '21
• Are our media freedoms under attack? NSWCCL 27 July '21

Background 

The Office of the Australian Information Commissioner has found Uber failed to appropriately protect the personal data of Australian customers and drivers, which was accessed in a cyber attack in October and November 2016. (For more, see the OAIC's media statement dated 23 July 2021: Uber found to have interfered with privacy).

NSWCCL statement

NSWCCL welcomes the recent determination against Uber, by the Office of the Australian Information Commissioner. However, it is also acts as a warning about the failures of the management of data privacy and data breach notification in Australia.

It is with sadness that we mark the passing of Emeritus Professor Hal Wootten AC QC on Tuesday 27 July and express our condolences to Hal’s wife, Gillian Cowlishaw, and all his family.

The founding Dean of the UNSW Law & Justice Faculty, a Supreme Court Judge and a Royal Commissioner, Hal was a longterm NSWCCL member who served on our committee and dedicated his life to the protection of human rights.

His accomplishments went beyond the law, with stints as President of the Australian Conservation Foundation and Chairman of the Australian Press Council. He was also an amateur expert on birds and a breeder of quarter-horses.

In its editorial, the Byron Shire Echo noted both our calls to protect contact tracing data and our coverage of the constitutionality of the lockdown.

More: Editorial - let's all acquiesce

NSWCCL notes with concern a request from NSW police for support from the Australian Defence Force to enforce COVID-19 restrictions. While the army has previously been used to enforce border restrictions and hotel quarantine, the use of the army to control citizens as they go about their daily lives is an unprecedented escalation.

This is a health crisis, not a national security crisis, and it must be approached as such. As noted by NSWCCL committee member Lydia Shelly in an article in the Guardian, the disproportionate policing of lower socio-economic areas that historically have a strained relationship with police is not the answer. 

The NSWCCL is calling for the disallowance of proposed regulations could that could prevent charities from engaging in important advocacy work.

The regulations would allow the Australian Charities and Not-for-profits Commission (ACNC) to deregister an organisation if it “reasonably believes” its members are likely to commit a summary offence.

We echo concerns expressed by many charities that the regulations could empower the regulator to deregister a charity for attending or promoting protests where minor offences are committed without the charity's knowledge or involvement. 

The rejection of Independent MP Zali Steggall's climate action legislation by a Government-dominated parliamentary committee shows how far out of touch the Government is with most Australians' views on climate action.

Polling routinely shows the majority of Australians support climate action: for example, a recent Essential Report shows support ranging from 62% to 81% in support of a range of propositions including preventing new coal mining, zero-carbon targets and developing green industry.

The NSW Council for Civil Liberties is deeply concerned by the escalation in legal sanctions faced by journalists in the course of their work, as highlighted by the recent high profile Friendlyjordies case.

Friendlyjordies, or Jordan Shanks-Markovina, is a well known YouTuber and online commentator. In a number of videos, Shanks-Markovina is deeply critical of the Deputy Premier, John Barliaro, leading to a defamation case over two videos that John Barilaro alleged were part of a smear campaign against him. 

In itself, this was troubling enough: a politician in an uncomfortable position may find that a defamation case provides a convenient shield against having to answer any further awkward questions. Meanwhile, defending such cases can be an extremely costly and time-consuming exercise, giving publications significant pause for thought before publishing strong critiques of people who might be inclined to sue. (For more, see NSWCCL on politicians and defamation).

But what came next was extraordinary.

The arrest

Prompted by a complaint to police by Barilaro, Friendlyjordies producer Kristo Langker was arrested by the NSW Fixated Persons Investigations Unit (FPIU) and charged with stalking Barilaro.

The NSW Council for Civil Liberties is deeply concerned by the tendency of Australian politicians to employ defamation law against journalists and critics. This behaviour has a significant potential chilling effect on freedom of expression, undermining our ability to hold politicians to account.

This weekend saw some disturbing incidents playing out in Sydney during protests against the current lockdowns.

NSWCCL has reviewed some of the footage with concern.

We support the right to peaceful protest - irrespective of whether we agree with the demands of those protesting.

But rights are not absolute and protest should be made in a responsible way that takes account of prevailing circumstances.

In its coverage of the weekend's violent protests The ABC quoted NSWCCL President Pauline Wright, who condemned the weekend's violent anti-lockdown march in Sydney but says people do have the right to protest.

"Rights though are not absolute and people should protest peacefully and at the same time we would call on New South Wales Police to exercise restraint," she said.

More information: Calls for police to show restraint after Sydney COVID-19 protest

We've fielded many queries in the past weeks about the impact of the recent COVID19 lockdowns on our civil liberties. With some help from George Williams, an Australian academic specialising in Australian constitutional law, here are some answers.

The NSW Council for Civil Liberties wrote to Senator Marise Payne today calling for urgent action to rescue people employed by Australia in Afghanistan now, without long delays checking on health, security and character. 

Comments from our Government that those working through subcontractors are not eligible, or that the Government is following rules drawn up by the previous Labour government, are deeply disturbing.

It's time for action, not political point scoring.

The NSW Council for Civil Liberties is calling DFAT to withdraw its 2019 Country Information Report - Sri Lanka, relied on to refuse protection to Tamils including the Murugappan family, due to concerns over its currency and accuracy.

DFAT's country report was criticised recently (27 May) by a UK Upper Tribunal, along with a similar UK report, which the UK Home Office removed the next day (28 May) as it was 'out of date'.

On 16 July 2021, the NSW Council for Civil Liberties made a submission to the Digital Transformation Agency (DTA) in regard to the public consultation on the Digital Identity Legislation Position Paper.

NSWCCL welcomes the codification of the DIS which will embed privacy safeguards in primary legislation not in a subordinate instrument. The DIS claims to include a number of privacy features. The effect and success of which will be known once the draft legislation is introduced. 1 Such features include voluntary participation, no single identifier, express consent and Privacy Impact Assessments (PIA) for accreditation. Despite these provisions, there are clear weaknesses. The rules, for example, will allow for the PIA to be conducted by an assessor from within the same entity as the applicant; hardly independent.

More information:

• Digital Identity Legislation Position Paper
• Australia's Digital Identity Legislation - consultation site
• Our full submission

Writing in the Strategist, NSWCCL Vice President Lydia Shelly and John Coyne argue that Australians have seen their civil liberties and their community cohesion increasingly securitised and viewed as secondary to the need to prevent violence post 9/11.

"Despite our efforts to promote unity and to deny the world’s divisive cultural, political and ideological conflicts fertile ground to spawn hatred in Australia, old and new divisions remain deeply rooted in our multicultural society. Dealing with the Covid-19 pandemic threatens to further fracture and fragment our understanding of civil liberties and national security and how to protect them both."

For more: read the full article - Australia needs to protect both civil liberties and national security

UPDATE: This concern has been partially addressed by this amendment to the Public Health Order on 10 July:

 27 Direction about use and disclosure of contact details To avoid any doubt, it is directed that contact details provided under clause 25 are to be used or disclosed only for the purposes of contact tracing during the COVID-19 pandemic.

Legislation to ensure privacy protection, similar to that passed in Western Australia, would be preferable.

From Monday 12 July, it will be mandatory for all businesses and workplaces in NSW to use the ServiceNSW Check-in tool. While contact tracing is vital for NSW given the seriousness of the current COVID19 outbreak, the NSWCCL has serious concerns about the privacy of individuals' data.

In WA, police have already accessed contact tracing data during criminal investigations on two occasions, prompting the WA Government to urgently pass legislation ensuring that contact tracing information can only be used and disclosed for contact tracing and related purposes.

Meanwhile, The Victorian and Queensland state governments have confirmed the police can access data from their respective COVID-19 QR code check-in apps with a warrant. In fact, the Queensland police have already done so.

The NSWCCL calls on the NSW Government to enact laws to ensure that data provided for contact tracing can't be used for anything else.

More information: read our public statement

The Guardian: The disproportionate policing of lower socio-economic areas that historically have a strained relationship with police is not the answer to a health crisis, NSWCCL Vice President Lydia Shelly.

For more: read the full article in the Guardian

Nearly 18 months after the 'Ice' Inquiry recommended decriminalisation, diversion, and a whole-of-government approach, the NSW Government's Final Response is missing in action.

Meanwhile, community support for a health and education based approach is growing: the 2019 National Drug Strategy Household Survey showed that 57% of Australians supported pill testing, while the most common action supported for people in possession of drugs including amphetamines was ‘referral to treatment or an education program’.

The NSWCCL urges the Government to publish its Final Response as a matter of urgency and to reconsider its opposition to measures that focus on health outcomes. It is time to fundamentally rethink our current approach to drug policy to better reflect our society’s values and expectations. We need an evidence- based approach that prioritises health and education and supports, rather than stigmatising, those affected by drug use.

For more: read our letter to the NSW Attorney General