8 September 2020
Systemic racism and the over-incarceration of Indigenous people must be addressed.
NSWCCL’s upcoming online panel discussion, on 11 September 2020 at 6:30pm, featuring Judge Myers AM, Sarah Hopkins, Teela Reid and NSWCCL President Nicholas Cowdery AO QC is 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).
In 2018 the Australian Law Reform Commission (ALRC) was asked to consider laws and legal frameworks that contribute to the incarceration rate of Aboriginal and Torres Strait Islander peoples. Aboriginal and Torres Strait Islander adults make up around 2% of the national population, but constitute 27% of the national prison population. The ALRC Report was released in March 2018 and includes 35 recommendations, most of which have simply not been addressed.
His Honour Judge Matthew Myers AM, Commissioner in charge of the ALRC Inquiry, said that while the problems leading to the over-representation of Aboriginal and Torres Strait Islander peoples in prisons are complex, they can be solved,
“Law reform is an important part of that solution. Reduced incarceration, and greater support for Aboriginal and Torres Strait Islander people in contact with the criminal justice system, will improve health, social and economic outcomes for Aboriginal and Torres Strait Islander peoples, and lead to a safer society for all.”
Since 2011 Just Reinvest NSW has been working to support communities to explore and establish justice reinvestment initiatives, including in Bourke, NSW. The focus is to reduce imprisonment rates by directing resources into building strong and safe communities, rather than funding prisons.
Sarah Hopkins, Chair of Just Reinvest NSW, believes that what is required is a shift in the way we view prevention, intervention and justice:
“If we are real about this, what is needed is not just a shift in funding out of prisons and the criminal justice system into crime prevention and early intervention, but a more fundamental shift in power from government to communities, including power over resources. This is about community aspirations and resilience.”
Teela Reid, Wiradjuri and Wailwan woman, lawyer and human rights activist, says that if NSW is serious about protecting civil liberties, then it is time to get very uncomfortable with the status quo.
“The truth is Australia is a colony built on racism, it is written into the laws and operates within its institutions. Systemic racism requires systemic change. If you deny racism exists, then you are part of the problem. This land always was, always will be sovereign Aboriginal and Torres Strait Islander land, sky and sea.”
Ms Reid asks if we are all prepared to confront our own power and privilege to dismantle the systemic racism that continues to oppress. She states that the Uluru Statement from the Heart and the Walama Court ‘are radical attempts to change systems in our search for truth and justice.’
In considering the journey of Australia’s First Nations peoples, NSWCCL President Nicholas Cowdery AO QC believes we need to understand the history of colonialism and dispossession that has led to the disadvantage experienced by Aboriginal and Torres Strait Islander communities. In order to walk with Aboriginal and Torres Strait Islanders ‘in a movement of the Australian people for a better future’ as the Uluru Statement invites, then we also must acknowledge the resilience of Australia’s Aboriginal and Torres Strait Islander peoples.
Mr Cowdery commented:
”Australia’s First Nations peoples constitute the world’s oldest living culture - over 65,000 years. Colonisation took away their land, languages and many traditions and has left them almost without a voice to power. That process has created social disadvantage leading directly to over-representation in prisons around the country.
…This panel will discuss how we reached this disgraceful situation, why now is the time to recognise the resilience of First Nations peoples and to do something about it – and what can be done, drawing upon a huge body of knowledge already assembled.”
2020 has been a challenging year for many individuals and communities. For those who have experienced financial hardship, or are not in a position to pay for a registration, NSWCCL is offering free registration.
“We want to share this important panel discussion with as many of our members and supporters, and beyond, as we can,” says Mr Cowdery.
Registrations - https://www.nswccl.org.au/tickets_2020_nswccl_fundraiser
Free invitation - https://www.nswccl.org.au/invitation_nswccl_2020_panel_discussion
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 will be held on Friday 11th September at 6:30pm and will be 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 will also be announced.
Download this statement as a PDF.
We represent a vast group of community and civil society partners and leaders in New South Wales (NSW) who place on the public record our strongest opposition to NSW One Nation’s Education Legislation Amendment (Parental Rights) Bill 2020. This legislation, introduced to the NSW Parliament by One Nation’s Mark Latham, aims to outlaw the teaching of gender diversity and the acknowledgement of trans and gender-diverse students and their families and seeks to strip professional accreditation from any teachers and school staff breaking such a law.
INQUIRY INTO THE EXEMPTION OF DELEGATED LEGISLATION FROM PARLIAMENTARY OVERSIGHT
The New South Wales Council for Civil Liberties welcomes the opportunity to make submissions to the Senate Standing Committee for the Scrutiny of Delegated Legislation with respect to its Inquiry concerning the exemption of delegated legislation from parliamentary oversight.
Recommendation 1: The Committee’s role should be expanded so that it can analyse legislative instruments which are not subject to parliamentary disallowance, disapproval or affirmative resolution of the Senate, and to scrutinise the justification for the existence of delegated legislation of that substance and form in the first place.
Recommendation 2: All delegated legislation should be subject to parliamentary disallowance in normal times, with the Legislation Act 2003 (Cth) amended to reflect this.
Recommendation 3: Delegated legislation may only be exempt from parliamentary disallowance in exceptional or emergency situations, with clear criteria established in the Legislation Act 2003 (Cth) in relation to sunset periods for such legislation and the use of Henry VIII clauses.
Recommendation 4: An investigation be initiated by either this Committee or some other authority to determine, pending an authoritative statement by the High Court of Australia, whether the practice of exempting legislative instruments from parliamentary disallowance amounts to an unconstitutional abdication of legislative power, as has been suggested by leading constitutional commentators.
Recommendation 5: Parliament should use all means possible to continue sitting, even during emergencies, in order to provide its scrutiny and supervisory functions over delegated legislation. Parliament should investigate further the possibility of meeting virtually by electronic means and have regard to the arguments of constitutional experts such as Professor Twomey in this process.13 This recommendation echoes previous public statements made by NSWCCL.
Recommendation 6: As PIAC recommends, implement recommendation 18 of the 2019 inquiry into delegated legislation, recommending that legislative instruments, subject to limited exceptions, commence 28 days after registration.
Recommendation 7: As PIAC recommends, implement recommendation 16 of the 2019 inquiry into delegated legislation, recommending that the Office of Parliamentary Counsel modify the Federal Register of Legislation to enable instruments which are exempt from disallowance to be readily identified.
The New South Wales Council for Civil Liberties (NSWCCL) welcomes the opportunity to make submissions to the Senate Standing Committee for the Scrutiny of Delegated Legislation (Committee) with respect to its Inquiry concerning the exemption of delegated legislation from parliamentary oversight (Inquiry).
NSWCCL commends the Committee’s resolve to meet regularly during the recent period of parliamentary adjournment to ensure its continued scrutiny of all delegated legislation, particularly disallowable executive-made COVID-19 instruments. There are significant constraints on the capacity of the Committee to scrutinise particular legislative instruments exempt from parliamentary disallowance, but it is nonetheless performing a very valuable role in flagging ‘framework’ issues.
The Australian government’s response to the COVID-19 crisis has been enabled by the provision of extraordinary powers to Executive Government and Government agencies. This has been achieved largely through the mechanism of determinations under the expansive human biosecurity provisions of the Biosecurity Act 2015 (Cth). As of 6 July 2020, there were 199 specific COVID-19 ‘instruments’ and, of greatest concern, at least 42 of these are not disallowable, denying the Committee the ability to scrutinise them.
The Committee is empowered to scrutinise delegated legislation subject to parliamentary oversight against its 12 technical scrutiny principles (Senate Standing Order 23). These principles include whether the legislation unduly trespasses on personal rights and liberties. However, many of the determinations exempt from parliamentary disallowance are having a significant impact on individual rights and liberties, effectively contain serious offences and impose obligations to do or desist from certain activities. As we understand it, the Committee has no power to scrutinise whether particular pieces of delegated legislation should in fact be disallowable under the current standing orders.
The NSWCCL submission makes 7 recommendations to the Standing Committee.
 Scrutiny of COVID-19 instruments, List of COVID-19 related delegated legislation, Parliament of Australia <https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Scrutiny_of_Delegated_Legislation/Scrutiny_of_COVID-19_instruments>
10th July 2020
NSWCCL has concerns regarding claims that a critically ill man from the New South Wales South Coast has twice been denied an exemption from undergoing hotel quarantine in Sydney, despite medical advice he self-isolate at home.
The ABC reported (8th July) that Stephen Evans, diagnosed with stage four oesophageal cancer in 2018, recently returned from Germany where he had a highly specialised lung procedure. NSW Health has twice refused Mr Evans’ request to self-isolate at home, stating that personal health circumstances must be balanced with ‘the requirement to implement the Public Health (COVID-19 Air Transportation Quarantine) Order 2020.’
The Orders allow for NSW Health and/or the Health Minister, to grant an exemption to permit self-isolation at home under strict conditions.
NSWCCL acknowledges the importance of adherence to the Public Health Orders relating to COVID-19 containment efforts. However, there must be an ability to protect the wider population, at the same time as catering for those in our community with particular medical needs and requirements. In the spirit of protecting the general public under the Order, we must not lose the capacity to protect individuals.
Mr Evans’ oncologist and another of his doctors have written letters in support of an exemption from hotel quarantine, outlining their patient’s specific conditions and requirements, including a customised bed and strict dietary requirements. The request specified that ‘Without doubt, it is in Stephen's medical interests to be self-isolating at his home… in order to be in proximity to his supports and local medical team, and to be distanced from others who may be at risk of COVID-19 infection.’
The doctors’ letters reference the medical benefits of Stephen being granted an exemption and their faith in his ability to fulfil requirements made of him, were he to be granted permission to serve the remainder of the compulsory quarantine period in home isolation.
In regard to granting exemptions, where circumstances permit, NSWCCL supports an individualised, compassionate approach, particularly in regard to someone such as Mr Evans, who is already suffering serious health complications and a medical condition that is not communicable to others.
NSWCCL supports urgent requests for further consideration to be given to Mr Evans’ circumstances and specialised medical needs. Mr Evans has a right to seek positive health outcomes in a way that doesn’t endanger others and a solution is available that satisfies the requests and advice from his doctors while protecting the broader community.
Michelle Falstein - Secretary, NSW Council for Civil Liberties
M: 0412 980 540
NSWCCL made a detailed submission to the Senate Select Committee on COVID-19 in June. We lobbied for the formation of this important Committee as a way of providing otherwise absent parliamentary scrutiny of the Government’s huge response to the COVID crisis in the disturbing absence of regular parliamentary sittings.
We are pleased that the Committee, which has wide terms of reference, began its work immediately on its formation both by calling for this Inquiry and initiating public hearings – in the first month largely with Government agencies and ministers. The chair of the Committee made some promising commitments in her opening statements for the first public hearing:
This committee is a key vehicle to provide accountability, transparency and scrutiny of the Australian government's response to the pandemic for the Australian people.
This is not your typical Senate committee. We will demand a lot of witnesses in terms of a cooperative approach that is based on working together in the national interest to ensure all aspects of our response are the best they can be. Political grandstanding will be kept to a minimum. (Senator Gallagher 23 April 2020)
There are already disturbing signs that some ministers and key agencies may not be as open in the provision of information to the Committee as is necessary if it is to fulfil its scrutiny and accountability roles.
Our submission focussed on 4 key areas:
- the fairness and inclusiveness of emergency support programs;
- the need to shape the Australian economy post-COVID towards the creation of a fairer, more just and environmentally sustainable society;
- ensuring the extraordinary powers given to ministers and agencies to restrict Australians’ normal freedoms and rights are necessary and proportionate for the protection of public health and safety, and that we have a process to ensure they will be repealed when no longer necessary;
- the enhanced imperative to put in place governance structures an to effectively scrutinise the integrity of the allocation of the vast public resources that will be expended in response to and in the aftermath of the COVID emergency.
* This submission will be published on the NSWCCL website after it has been posted to the Senate Select Committee's website.
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.
Last month, 23 June 2020, three members of the NSWCCL Committee, President Nicholas Cowdery AO, QC, Vice-President Dr. Eugene Schofield-Georgeson and committee member Jared Wilk (co-Convenor of Human Rights and Civil Liberties Action Group), met with NSW Commissioner for Police Mick Fuller and Deputy Commissioner Jeff Loy. Law and policy issues relating to strip searching, drugs, protests and policing of Indigenous people were discussed.
The NSWCCL is grateful that the Commissioner and his deputy were willing to engage in meaningful and open dialogue with us. We consider this meeting and the willingness of the Commissioner to engage in future dialogue to be a positive development and an opportunity for constructive discussion in relation to the issues which are important to the Council’s principles and values.
We will continue to advocate strongly for improvements and reform in relation to law, policy and internal policies and guidelines which are relevant to policing and to work with the community to strengthen and protect civil liberties and human rights in NSW.
NSWCCL has written to a number of Senators, members of the Legal and Constitutional Legislation Committee, regarding the inquiry into the Migration Amendment (Prohibiting Items in Detention Facilities) Bill 2020.
The Refugee Action Collective of Victoria (RACV) has proposed that the Legal and Constitutional Committee ask the Department of Home Affairs a large number of questions about matters of fact before they meet on July 3.
Although the New South Wales Council for Civil Liberties believes that there are strong grounds for rejecting the Bill outright that are for the most part independent of the matters that the RACV raises, we nevertheless urge you to do as the RACV requests.
Failure to present relevant facts until parliamentary committee hearings are underway, or by taking questions on notice, till after those hearings are complete, prevents transparency, and betrays a lack of commitment to democracy.
In addition to the question the RACV ask, NSWCCL requested the Senators to also ask:
How many landline telephones are available in each compound or separate section of each detention facility? For what hours are they available? And how many detainees are there in each of those facilities?
NSWCCL made a submission to Legal and Constitutional Committee inquiry into the Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2020, recommending that the Bill be rejected.
Media coverage: 7News
As individual cities such as Boston and San Francisco in the United States are banning the use of facial recognition technology as part of the #BLM response, 7-Eleven in Australia has launched the technology across all of its 700 Australian stores.
The convenience store chain will use the facial recognition software within its ‘Rate It’ customer service tablet, and “not for any other purpose”.
“The use of facial recognition within the Rate It tablet is to ensure that the feedback is accurate and valid, and given customer feedback is so important to us we don’t want the system being ‘gamed’.
It’s an assurance that doesn’t sit well with Stephen Blanks from the NSW Council for Civil Liberties.
“This kind of information gathering should be against the law. It’s certainly against good privacy practice and principles.”
Blanks said collecting the data of people trying to provide feedback made little sense.
“They are creating an incentive not to use the feedback tablet – which is contrary to what they’re wanting to achieve.”
7NEWS.com.au understands that an element of the software’s facial recognition is to discourage 7-Eleven staff from self-rating during a shift.
“That’s not an adequate justification for gathering the information,” Blanks said.