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Landmark legal victory on climate change

In a welcome landmark victory in the NSW Land and Environment Court today, the Environmental Protection Agency (EPA) has been ordered to take action on climate change. This is the first time a government organisation has been compelled to act on climate change in accordance with a statutory duty in Australia.

The court found that the EPA's statutory duties include a duty to develop objectives, guidelines and policies to ensure the protection of the environment from climate change, and that it had not fulfilled its duty to protect the state’s environment. 

It may come as a surprise to many that the EPA currently does not have specific policies in place to mitigate greenhouse gas pollution, one of the most dangerous forms of pollution in the long term.

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Are electoral laws being misused to entrench ALP/LNP duopoly?

The New South Wales Council for Civil Liberties (NSWCCL) is concerned that the two major parties have joined together to limit the ability of smaller political parties to register under electoral laws. In a healthy democracy, established major parties should encourage the registration of smaller parties within reasonable and proportionate limits to enhance the contest of ideas, not seek to maintain their duopoly. 

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Urgent action required over COVID cases in prisons

Until recently, NSW had seen very few COVID cases in prisons. But that has changed, with Croakey Health Media reporting on Monday that:

"In response to queries from Croakey, NSW justice officials last week confirmed seven (including one staff member) COVID-19 cases in prisons and juvenile justice facilities, the highest number in a justice jurisdiction since the pandemic began, according to international advocacy group Human Rights Watch."

This is of particular concern given the over-representation of Indigenous people in our prisons, coupled with their disproportionate COVID risk. NSWCCL is calling on the government to take urgent action, including:

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Fines confusion

This Sydney Morning Herald article talks to people fined $1000 for eating outside. It quotes NSWCCL President Pauline Wright, who points out that the Police Commissioner's assurance to police that he wouldn't hold them accountable for wrongly issued fines is “tacit acknowledgement that the rules are difficult to understand.”

“If the police can’t be expected to fully understand them, and it’s their job, how are ordinary people expected to understand and comply as well?” Ms Wright said.

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Catch-22 for refugee

According to coverage by the Guardian, a refugee who has lived in Bris for a decade, with permanent residency, was given five days to respond to notice of intent to cancel his visa. The issue? He was required to document his identity for his citizenship application, but there's no reliable way to do so.

We have written to the Minister for Immigration, Alex Hawke, for clarification - we hope to hear that the man's citizenship application has been accepted.

 

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NSWCCL endorses Constitutional Alteration to enshrine freedom of expression

On 20 August, NSWCCL made a submission to the Senate Legal and Constitutional Affairs Legislation Committee in regard to the Inquiry into the Constitution Alteration (Freedom of Expression and Freedom of the Press) 2019 (Constitutional Alteration).

The NSWCCL endorses wholeheartedly the proposed Constitutional Alteration which aims to enshrine the right of freedom of expression, including freedom of the press and other media, in the Constitution. This will be achieved by inserting a new Chapter IIIA and section 80A in the Commonwealth of Australia Constitution Act 1900.

More information:

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Public statement:  NSW cannot arrest its way out of the pandemic 

It is essential that the people of NSW be united in their drive to combat COVID-19 and have confidence in the measures imposed by government. There can be no doubt that properly calibrated temporary measures designed to reduce the spread of the virus are required. 

But on grounds of overreach and disproportionality, the NSW Council for Civil Liberties (CCL) is deeply concerned about the special powers to be given to the police, announced yesterday. 

We are also concerned at the imposition of a curfew and limit of exercise to one hour per day on people within the 12 specified local government areas.  

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RDC: Why are people with a disability over-represented in the criminal justice system?

Last week the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability concluded Public Hearing 15, People with Cognitive Disability in the Criminal Justice System: NDIS Interface. This was a continuation of Public Hearing 11: The Experiences of People with Cognitive Disability in the Criminal Justice System. The Commission heard from a variety of lived experience witnesses, government agencies, disability services, academics and advocates about the nature of the ‘criminalisation of disability’ in the Australian context.  Videos and transcripts of the hearings are available on the Royal Commission website

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Police Commissioner's comments a "failure of leadership"

The Sydney Morning Herald writes that, in a video to the force, NSW Police Commissioner Mick Fuller asked officers to "put community policing to the side" for 21 days. He went on to say "I have said before, if you write a ticket, and you get it wrong, I understand, and I won’t hold you to account for that."

Former NSW Director of Public Prosecutions and NSWCCL committee member and former President, Nicholas Cowdery QC, said while it was important all legitimate means be used to deal with the crisis, it was a “failure of leadership to tell officers in advance that if they get something wrong, there will be no consequences”.

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Afghanistan: seven steps the government should take NOW

The news coming out of Afghanistan in the wake of the military withdrawal is as disturbing as it was tragically predictable. 

NSWCCL is joining with the Refugee Council of Australia and others to call on the Government to take seven steps immediately:

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NSW's Public Health Order and our right to avoid self incrimination

Update 11 Oct '21: The information we received following our GIPA requested was reassuring. However, we remain concerned: in the context of a public health emergency, it's vital that people do not fear any repercussions for telling the truth if this might incriminate them. We wrote again to the Commissioner noting that Police appear to have exercised restraint but also noting our ongoing concerns. We called for: 

  • The Public Health Orders to be amended to include a derivative use immunity to protect people who provide information or evidence to Police in the course of their enforcing the Public health Orders.
  • Confirmation that information transferred to another agency because it is ‘necessary to do so for the purposes of protecting the health or welfare of members of the public during the COVID19 pandemic’ would not include information transferred to Police with the purpose of issuing a Penalty Infringement Notice or Court Attendance Notice.

Update 23 Aug '21: the Police Commissioner has responded to our letter, suggesting that we make a GIPA request for the information we requested, so that's what we've done. Stay tuned for the outcome.

NSWCCL is investigating concerns that a recent health order appears to remove our common law privilege against self-incrimination. We have written to the Police Commissioner to seek more information about what's happening on the ground in order to develop our response.

The health order

Our concerns relate to Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order 2021 as amended to commence at 5pm on 7 August 2021, made by Minister Hazzard under s. 7 of the Public Health Act 2010 (PHA). 

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Concerns remain over incarcerated people's wellbeing during the pandemic

In June 2020, NSWCCL raised concerns about the physical safety of people in prison during the pandemic, given the difficulty of social distancing within a prison environment.

While it is reassuring that, to date, the number of COVID-19 cases in custodial settings has been limited, we remain concerned.

Firstly, we have ongoing concerns about inmate safety and the risk of rapid transmission of COVID should it make its way into prisons. For example, it has been reported to us that in a wing of about 200 at Cessnock, there is no social distancing, inmates do not wear masks, inmates remain unvaccinated and jabs have not been offered to some inmates.

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Climate: what will it take for our Government to act?

Newspaper headlines across the world echoed the words of UN Secretary-General António Guterres yesterday, announcing code red for humanity as the IPCC released its bleak Sixth Assessment Report on climate change. Meanwhile, Australia's status as a pariah nation, whose policies preclude an invitation to global summits, was cemented recently by news that a UN endorsed report ranked Australia "dead last in the world for climate action".

The IPCC report's conclusions - that human activities are unequivocally causing climate change and that urgent, concerted action is needed to limit that change to 1.5°C warming - are as alarming as they are unsurprising. Equally unsurprising was the Australian Government's response: denial and obfuscation.

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Environmental planning instruments (SEPPs) report released

The NSW Legislative Council Regulation Committee Inquiry into Environmental Planning Instruments (SEPPs) released its report today.

Unfortunately the committee has not recommended that disallowance apply to SEPPs. It is difficult to understand the basis on which the committee has not recommended that disallowance apply to SEPPs. The argument put forward by the Property Council and Minerals Council that the applicability of disallowance would be inconvenient, and unnecessary if consultation were improved, appears to have been accepted uncritically.

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Is parliamentary debate being gagged?

As at 10 August, 737 votes had taken place in the current sitting of the House of Representatives. Only 297 were votes on actual pieces of legislation, while a staggering 440 votes  or 60% were for the suspension of standing orders or 'gag' orders to shut down debate.

Word cloud showing Closure as the largest word

This word cloud (from the APH website's divisions page, the source of our figures) says it all.

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Vaccine passports

Vaccine passports - or fewer restrictions for those who are vaccinated - are on the cards for Australia, although the details have yet to be worked out. While we support the right to refuse a vaccine, we also support the introduction of passports, although any restrictions must be temporary and proportionate.

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Our Government doesn't want a bill of rights

Writing for Mondaq, Paul Gregoire looks at our rights in the context of the current COVID lockdowns. He concludes that we have very few, with Australia the only western liberal democracy that "fails to have a piece of legislation that establishes and upholds the rights of the people".

Examining our failure to pass such legislation, he refers to former NSWCCL president Stephen Blanks, saying that  an underlying reason for the major parties not being keen on passing such a bill is it would place restrictions on their power whilst in office.

Read the full article: Australia: The federal government does not want a national bill of rights Mondaq 5 Aug '21

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COVID-19 'vaccine passport

The ABC considers how the proposed carrot-and-stick approach of vaccine passports might work, for example with the fully vaccinated exempt from state border closures or lockdowns; business given the all clear to remain open during lockdowns, but only for the fully vaccinated; or travel bans to apply only to the unvaccinated.

It moves on to consider whether this kind of conditional restriction would be legal.

NSWCCL President Pauline Wright told the ABC that Australia's powerful health and biosecurity laws gave governments the right to do this sort of thing. "At both state level and federal level, it is legal for the government to impose restrictions on people in times of health emergency," she said.

Read the full article: The COVID-19 'vaccine passport' is coming. Here's how it could work and how it's legal ABC 5 Aug '21

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Sydney police need to be more aware of Legal Observers, says NSWCCL

Lawyers Weekly covered our letter to the NSW Police Commissioner over the way volunteer Legal Observers are being treated at protests across the city, saying:

'In a letter addressed to Commissioner Michael Fuller APM, president of NSW Council for Civil Liberties (NSWCCL) Pauline Wright raised concerns over the treatment of volunteer Legal Observers by police at a number of protests in Sydney during recent months.'

Read the full article: Sydney police need to be more aware of Legal Observers, says NSWCCL Lawyers Weekly 5 August 2021

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The right to peaceful protest must not be suspended via public health order

The legal right to peaceful protest is fundamental to our democracy. Protests hold governments to account and make our country better. While the powerful few are able to write cheques or call their friends in high places, protests are how the invisible or ignored can become seen and heard by government. Only after tireless, sustained protest did Aboriginal and Torres Strait Islander people win the right to vote, did LGBT+ people achieve marriage equality, and did unions secure the eight-hour work day.

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