NSWCCL News

NSWCCL amongst civil society groups calling on NSW Parliament to resume

Six civil society groups are today calling on the NSW State Parliament to immediately reconvene regular sittings, in a way that is safe, so it can debate and address important matters of public concern.  

The NSW community is looking to their State Government to guide them through the COVID-19 public health emergency. Issues including the impact the pandemic is having on people experiencing homelessness and domestic violence and on Aboriginal and Torres Strait Islander peoples must be open to parliamentary scrutiny. 

As NSW teachers prepare to go back to classrooms next week, NSW MPs will sit for just one day to pass rental relief measures and are then not scheduled to sit again until September. Only with regular parliamentary processes can the Government respond to the community’s needs rapidly. 

The use of the Upper House Public Accountability Committee to review the NSW Government’s management of the COVID-19 pandemic was a step in the right direction. However, the Committee is yet to hold hearings since its inception in March, and is not accepting public submissions. The Committee has, so far, not put any measures in place to improve the transparency and accountability of executive decision-making. 

Nicholas Cowdery AO QC President of NSW Council for Civil Liberties:

“There is no legal impediment to the conduct of safe sittings of parliament in the coronavirus context. Accountable government is a requirement of democracy and without it, intrusive emergency measures may become manipulated and entrenched beyond this crisis.” 

Jonathon Hunyor, CEO of the Public Interest Advocacy Centre:

“In responding to the COVID-19 public health emergency, the NSW Government has been making major decisions with significant impact on our daily lives and fundamental rights. We need Parliament doing its job, ensuring oversight and accountability – it’s an essential part of our democracy.”

The Hon Anthony Whealy QC, Chair of The Centre for Public Integrity and former Judge of the NSW Court of Appeal:

"Parliament can and should sit during this crisis. Increased public spending and government intervention at this time calls for more scrutiny, not less. Australian Parliaments should follow examples set in the UK of MPs joining the chamber virtually to allow full representation across Parliament."

Alice Drury, Senior Lawyer at the Human Rights Law Centre:

“Now is the time for Parliament to shine, not shut down. We can have confidence in leadership during the COVID-19 pandemic only when decisions are transparent, open to constructive scrutiny, and responsive to the changing needs of our communities. We need regular Parliament processes back in place as soon as possible.”

See the original release from Human Rights Law Centre HERE

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Nominations open 2020 Awards for Civil Liberties Journalism

New South Wales Council for Civil Liberties announces that nominations are now open for two awards for excellence in civil liberties journalism for an article or series of articles, or a radio, television or podcast presentation, promoting civil liberties. The two awards are:

  • for young journalists under the age of 30 on 2 June 30, 2020, and
  • the open category.

Submissions are welcome, whether by self-nomination or third-party nomination. Submissions must include copies or links to the material that is the subject of the nomination. 

To be eligible, nominations must have been published or broadcast in Australia between July 1, 2019 and June 30, 2020, and must be received by the NSWCCL by 11:59pm, on 14th July 2020.

Nominations should be made online, to office@nswccl.org.au.

Nicholas Cowdery AO QC
President NSW Council for Civil Liberties

Read about last year's finalists and award winners HERE

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Supreme Court rules on VIC Government COVID-19 duty of care to person in prison

The Supreme Court of Victoria has found that the Victorian Government has prima facie breached their duty to take reasonable care for the health of a person behind bars during the COVID-19 pandemic.

The case, an urgent injunction brought by Fitzroy Legal Service and the Human Rights Law Centre, on behalf of a person in Port Phillip Prison with acute health needs, argued that people in prison are sitting ducks for COVID-19, and that it will only take one case to enter the prison for there to be an outbreak, which could not be stopped even if responsive measures are taken.

While the Court didn’t make any findings of fact given the case was heard as an interlocutory hearing, the Court did find that there was a prima facie case that the prison authorities breached their duty of care to safeguard the health of the person in prison, and that the Government must act compatibility with the Victorian Charter of Human Rights.

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This is an excerpt from a news article originally published by the Human Rights Law Centre, 2 May 2020.

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The right to protest should not be curtailed

4th May 2020

The right to protest should not be curtailed

The NSW Council for Civil Liberties has grave concerns with the actions of the Victorian Police in the arrest of Chris Breen. To our understanding Mr Breen has been charged with incitement under section 321G of the Crimes Act 1958 for involvement in a protest car convoy. We are equally concerned with the issuing of infringement notices and fines of $1652 to 26 other participants.

On Good Friday the Refugee Action Collective planned a peaceful demonstration to highlight the living conditions for the refugees being held in the Mantra Hotel, Preston, The Mantra is being used as an Alternate Place of Detention (APOD). The purpose of the demonstration was to bring attention to the difficulties of maintaining social distancing and other hygiene concerns in the facility. NSWCCL has already voiced their concerns  with the conditions in APODs.

Acknowledging the social distancing laws in place at the time, the protestors organised a car convoy with no more than two people in each car. The previous day a similar convoy had been held by the United Voice Union and although there were threats made in the media by the Victorian Police, no arrests were made, as was appropriate for a peaceful protest

On Good Friday the Victorian Police acted otherwise, by arresting Refugee Action Collective member Chris Breen in his house, holding him for nine hours at Preston police station, seizing his electronic devices (including his son’s) and charging him with incitement under section 321G of the Crimes Act 1958 for involvement in the car convoy. Police also issued infringement notices and fines of $1652 to 26 participants in the convoy.

NSWCCL has a number of concerns with the actions of the Victorian Police.

We are concerned by the use of public health measures to respond to matters of political action.

We are concerned with the precedent these actions could have for future rallies, protests or picket lines.

In order to maintain the civil right to protest in Victoria we make the following demands:

  1. The charge against Chris Breen to be dropped.
  2. The infringement notices be revoked.
  3. The Victorian Police and Government approve future car convoys and other safe forms of political protest.

NSWCCL has also written to Victorian Police Commissioner, Graham Ashton AM regarding this matter. View the letter HERE.


Angela Catallo and Dr Martin Bibby, co-convenors, NSWCCL Asylum Seekers and Refugees Action Group

Media requests: Angela Catallo via email to office@nswccl.org.au.

 

See this statement as a PDF

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Police state or safety net? NSWCCL in LSJ

Media coverage: Law Society Journal

We may have flattened the curve; but have we squashed the rule of law in the process? Kate Allman, a finalist in the NSWCCL 2019 Award for Excellence in Civil Liberties Journalism (Young Journalists category), asks the question in this month's compelling cover story for Law Society Journal.

“I have never seen anything like this in my lifetime and I am not aware of any previous restriction on movement and basic freedoms, ever, such as we have seen today,” says Stephen Blanks, a spokesperson for the NSW Council for Civil Liberties.

Blanks first relayed his concerns to LSJ on 31 March, the morning after the most restrictive public health order, which orders NSW citizens to stay home other than to carry out limited essential activities, was signed into law. 

“Today, being the first day of the new regulations which prohibit leaving home except with a reasonable excuse, marks an extraordinary day in our legal history,” Blanks said.

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Submission: 2020 ECOSOC High Level Segment for NGOs

NSWCCL Statement to the 2020 ECOSOC High Level Segment for NGOs 26th April 2020

The New South Wales Council for Civil Liberties (NSWCCL) recognises that the human rights and civil liberties of all people cannot be fully realised unless, and until, the global community meets the targets set by the Sustainable Development Goals (SDGs). However we recognise that development, particularly economic, need not necessarily take place in a way that is human rights based.

 In times of accelerated progress towards any goal, it is clear that states can sometimes all too quickly pursue acceleration at the expense of human rights and equality. This is not to say that acceleration is itself problematic. In line with the recommendations of the Inter-Governmental Panel on Climate Change, acceleration of sustainable development in relation to climate change (SDGS 7, 11- 15) is vital to prevent the most catastrophic climactic changes. Climate change will only entrench vulnerability and marginalisation. We strongly endorse rapid acceleration of the response to climate change, particularly within Australia.

We emphasise the importance of attaining progress towards meeting the SDG targets in a way that centres human rights obligations at the core of development. The United Nations Human Rights Council has resolved that attainment of the SDGs and implementation of human rights obligations by states should be ‘mutually reinforcing’, and a state should implement the SDGs consistently with their pre-existing human rights obligations (A/HRC/RES/37/24). This is also recognised in SDG 10 and SDG 16.

Turning to an example from Australia, the longstanding inequality between Indigenous and Non-Indigenous Australians is a deplorable stain on Australia’s history. The 2020 Closing the Gap report identifies that the child mortality rate for Indigenous Australians is slightly over double the child mortality rate for Non-Indigenous Australians (p. 15). Numeracy and literacy rates for Indigenous school students are well below national standards (p. 45). Whilst we acknowledge that some progress is being made, such progress is slow and does not comply with the spirit of the SDGs and should be accelerated alongside economic development.

To ensure that the crucial acceleration of progress responding to the SDG targets takes place in a way that advances human rights we call upon states to:

  • Ensure that justice, integrity and accountability bodies within states are strengthened and properly resourced.
  • Adopt domestic legislation which enshrines fundamental human rights and affords citizens with personal remedies to protect their rights.
  • Ensure that the rights of marginalised and minority groups are given equal, if not greater, importance than the rights of others within society to remedy past injustices.

 

Michelle Falstein

Secretary

NSW Council for Civil Liberties Australia

 

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NSWCCL calls for release of those in alternative places of detention (APOD)

NSWCCL are asking members and supporters to urgently write to a group of Federal Ministers warning them of the risks involved in keeping 100 refugees in the Kangaroo Point Central Hotel, an alternative place of detention (APOD) in Brisbane, and 50 in the Mantra Hotel APOD in Melbourne.  We are calling for their immediate release into safe places in the community as part of the public health response to the COVID-19 emergency.

The risk in APODs is that they are crowded, and social distancing is impossible. Moreover, guards, service staff and others go in and out, generally without personal protective equipment. 

There are 9,900 members of I Have a Room, who have declared their willingness to look after asylum seekers and refugees in their own homes.  In APODs and Detention Centres, here, in Nauru and Manus Island, there are a few more than 1,400 asylum seekers and refugees. 

It is true that cases have been trending down: in Queensland in particular there have been no new cases of the virus in the last few days.  However, as Professor Paul Kelly, the Deputy Chief Medical Officer, said on the ABC’s Coronacast podcast on Wednesday 22 April, there is a risk of a second wave of the virus, which would be worse than the first.   Moreover, there may be asymptomatic cases, with people who are not aware that they have the disease able to spread it to others, who may die of it.

We thank you for taking this action to help protect asylum seekers and refugees in Australian care during the COVID-19 health crisis.

- Angela Catallo and Dr Martin Bibby, co-convenors, NSWCCL Asylum Seekers and Refugees Action Group

Media requests: Angela Catallo via email to office@nswccl.org.au.

 

Please write in your own words, or copy and paste the example letter below into an email, and send to:

The Hon. Alan Tudge, Acting Minister for Immigration alan.tudge.mp@aph.gov.au

The Hon. Peter Dutton, Minister for Home Affairs Peter.Dutton.MP@aph.gov.au

The Hon. Anne Ruston, Services Minister senator.ruston@aph.gov.au

The Hon. Greg Hunt, Minister for Health Greg.Hunt.MP@aph.gov.au

The Hon. David Coleman, Minister for  Immigration, Citizenship, Migrant Services and Multicultural Affairs. david.coleman.mp@aph.gov.au


Dear Ministers,

You will be aware of the concerns expressed by Mr. Ed. Santow about the COVID-19 health risk due to overcrowding inside two alternative places of detention (APODs) for refugees and asylum seekers - that is, in the Kangaroo Point Central Hotel in Brisbane and the Mantra Hotel in South Preston, Victoria.  According to Mr. Santow, social distancing is not possible while so many are detained there, and the lives of the detainees are at risk.

APODs are not isolated from the wider community--guards, service staff, cleaners and others go in and out.  They can carry infection in, and others will carry it out.  Mr. Santow's warning should be treated seriously and the response should be urgent.

I remind you of the consequences of Donald Trump's dismissal of warnings about the novel coronavirus as fear-mongering.

I am writing therefore to urge you to rescue the people detained in those two places from their almost inevitable infection with the SARS-2 virus if they stay there, and the likely deaths of some of them.   I urge you  to act swiftly and place them in community detention, or release them to safe places in the community. 

It is true that cases have been trending down: in Queensland in particular there have been no new cases of the virus in the last few days.  However, as Professor Paul Kelly, the Deputy Chief Medical Officer, said on the ABC’s Coronacast podcast on Wednesday 22 April, there is a risk of a second wave of the virus, which would be worse than the first.   Moreover, there may be asymptomatic cases, with people who are not aware that they have the disease able to spread it to others, who may die of it. 

There are 9,900 members of I Have a Room who have declared their willingness to take an asylum seeker or refugee each from detention into their own homes. 

I urge you to take up their offers, and act before it is too late

Yours sincerely,

 

(SIGN HERE)


Download the letter as a PDF to print, sign and scan/photograph and send via email.

 

 

 

 

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NSWCCL on the application of COVID fines by NSW Police

Media coverage: 9News/AAP

Some NSW police are handing out fines arbitrarily to people confused about COVID-19 restrictions, with "already over-policed" marginalised groups being penalised unfairly, a lawyer says.

Under COVID-19 measures, police officers have the power to fine individuals $1000 and businesses $5000 breaching public health orders or ministerial directions.

As of April 20, state police had issued 95 court notices and 736 penalty infringement notices, with on-the-spot fines, since March 17.

And while some of these cases are for people legitimately refusing to comply with social-distancing measures, solicitor Peter O'Brien says people are confused about what they are allowed to do and are being penalised unfairly.

"The lack of real clarity from the political masters who put in place this legislation is leading to an arbitrary application in the streets. People are genuinely and sincerely not certain of what a reasonable excuse is," Mr O'Brien told AAP.

"I'm concerned it's being applied to people who are already over-policed, the mentally ill, those fairly marginalised in society, most of whom can't afford to pay those penalties," he said.

NSW Council for Civil Liberties president Stephen Blanks questions why some of these fines are in areas of NSW where no known COVID-19 infections exist.

"The ultimate purpose of these regulations is for protection of community health," Mr Blanks told AAP.

"There was a couple in Cobar who were fined for being outside their home. The police should take into account if the activity engaged by the couple did put the community at risk. I'm not sure there are currently any infections in Cobar."

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Privacy and trust: The COVID-19 tracking app

Media coverage: MamaM!a

Podcast interview: The Government needs at least 14 million Australians to download the COVID19 tracing app, and if we do, they've promised we could get some of our freedoms back. 

So how will it work? What information of yours will it have access to? What will it mean for your privacy? We find out the facts on Covidtrace. 

Guests: Nigel Phair, Director of UNSW Canberra Cyber; Michelle Falstein, Secretary of the NSW Council of Civil Liberties. 

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Privacy and digital COVID-19 contact tracing

20th April 2020

CONCERNS RE PRIVACY AND DIGITAL COVID-19 CONTACT TRACING

Prime Minister Scott Morrison has confirmed that the Australian government is progressing with Singapore-style digital options for contact tracing. The proposed app tracks, via Bluetooth technology, the previous close contacts of an individual who subsequently proves to be COVID-19 positive.  This applies to any contact (also with the app) who had spent 15 minutes or more in close proximity with the infected person.

NSWCCL is concerned with the potential of the app to compromise data protection, increasing illegal and inappropriate use of data and facilitating surveillance and stigmatisation of Australians. Any collection or use of a person’s sensitive personal data for digital contact tracing must come with the imposition of strict limitations.

Despite assurances that the proposed app is opt-in and therefore voluntary, NSWCCL has grave concerns over the safety and privacy of information gathered, stored and shared, along with the potential for abuse of that information. Widespread uptake of any contact tracing app and effective contact tracing will be dependent on whether the Australian people trust the government to take their privacy concerns seriously. It is possible that, as with the My Health Record, the app is transitioned to opt-out, or worse, becomes mandatory because of insufficient uptake. Equally concerning is the possibility that individuals could be excluded by their workplaces or schools if not using the app.

The Minister has said If an individual registers COVID-19 positive status, that information is sent to a national health storage and then sent to State governments to notify the individual’s contacts. Cyber-attacks and accidental and illegal data breaches have and will continue to occur on Australian government databases. It is therefore desirable that mobile device contact tracing be decentralised, with contacts registered in encrypted form on the local mobile device, and not identifiable to others or the government. Such measures reduce the fallout should a data breach occur.

In convincing the community that restrictions can be eased with faster contact tracing, the government should be reminded that privacy and health are not tradeoffs, one for the other. Both are possible with well-designed technology.

NSWCCL recommends that the Australian government consider the use of alternative more privacy friendly digital contact tracing options which are currently under development. These options are rapidly becoming available. The Apple/Google collaboration is opt-in contact tracing which generates transitory arbitrary IDs processed locally on the device and not uploaded onto a central server. Bluetooth anonymous identifier beacons notify persons who have been in contact with a COVID-19 subject.  MIT and the EU are developing similar apps. The EU DP-PPT model uses a backend server to push information through to notify the contact of a risk of infection and has purpose-limiting dismantling of the app at the end of the emergency.

NSWCCL recommends that the Australian government, at least, adopts the following privacy protections in the implementation of the proposed digital COVID-19 app:

  • Consideration of reasonable digital alternatives to the proposed model of digital contact tracing
  • Transparency and accountability, providing information about the development and use of any mobile device tracking technology and how rights of the individual will be affected and protected,
  • The technology must be opt-in after the provision of accurate and complete information about the extent of its use, with the requirement to renew consent periodically,
  • The ability to opt out or terminate participation at any time, accompanied by built-in destruction of personal data,
  • The use of best practice privacy and security measures, including:
  • short, clear and accurate privacy policy;
  • strict and express data retention and destruction policy, linked to a short period of application;
  • limits on the type of data collected and how it can be accessed;
  • anonymisation of data;
  • strict limits on data sharing, in particular no sharing of information between government agencies except for public health purposes,
  • Decentralisation of anonymised data on users’ mobile devices,
  • Strict limitation in relation to the purpose and objects, for which users have expressly consented. Personal data should not be retained for any new purpose,
  • A clear, short period of application – (the sunset period for Israel’s contact tracing app is 30 days)
  • An easily accessible complaints system and independent judicial oversight, to address any grievances,
  • No ability to subpoena data through court proceedings, and
  • An independent oversight role for the Office of the Australian Information Commissioner (or other government office) and the new Senate COVID Committee, with regular public reporting of data collected by the technology.

Beyond these specific recommendations it has been longstanding NSWCCL policy that the Australian Government should legislate for a Bill of Rights and a statutory cause of action for serious invasion of privacy.

 

Nicholas Cowdery AO QC

President NSW Council for Civil Liberties  

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Contacts

Michelle Falstein Secretary NSWCCL: Michelle.falstein@nswccl.org.au

Dr Lesley Lynch: Lesley.lynch@nswccl.org.au

 

 

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