Writing in The Guardian, our President Pauline Wright considers the impact of recent events on our civil liberties.

"if there is one thing the pandemic has done, it is to illustrate how precious and how fragile our civil liberties really are. People have seen that governments or their departments can impose severe restrictions on us at the stroke of a pen. We have been made subject to curfews, punitive fines and uneven policing. Our borders have been closed, Australians abroad have been denied the fundamental right of every citizen to return and we haven’t been able to travel interstate to see loved ones, receive medical treatment or attend to urgent business without exemptions, which have proved as hard to obtain (for most of us) as hens’ teeth."

Sydney Criminal Lawyers talked to our President Pauline Wright about the increase in draconian legislation since 9/11, as well as during the pandemic, and the need for a Bill of Rights.

"Australia has no bill of rights, and that has allowed the Australian government to bring in legislation that it would not have been able to have enacted in other nations, like the United Kingdom, the United States and Canada, where they have bills of rights or human rights acts," said Pauline.

Writing in the Sydney Morning Herald about the ugly debate in Victoria, our Vice President Josh Pallas argues that the proposed legislation would be an improvement on the laws already in place both there and here in NSW.

"Which is the great pity of the breakdown in the debate in Victoria. Of itself, that debate about the way Victorians should be governed through the pandemic is a win for democracy. It wouldn’t happen in autocratic states. It presented an opportunity for parliamentarians, citizens and stakeholders to reconsider very powerful legislation when the issues were fresh in everyone’s mind."

Read the full article: Victoria’s supposedly autocratic pandemic laws would be better than NSW’s

On 18 November NSWCCL made a submission to the Inquiry into the Provisions of the Voluntary Assisted Dying Bill 2021.

We encourage NSW residents to let the Inquiry know how you feel via its online questionnaire (closing date Monday 22 November).

NSWCCL strongly supports the Bill, which has very strong public support and is long overdue. Death may be inevitable, but it need not be cruel. 

On 1 November 2021, NSWCCL made a submission to the Inquiry into the Public Interest Disclosures Bill 2021. The Bill re-writes protection for public officials who blow the whistle on wrongdoing, following a 2017 Joint Parliamentary Committee review that recommended a complete rewrite of the existing legislation.

NSWCCL endorses the Bill, which we note adopts nearly all the recommendations from the 2017 report, while noting some shortcomings.

The recent deletion of freedom of information requests relating to Christian Porter’s ‘blind trust’ by the Department of Industry, Science, Energy and Resources has highlighted important gaps in Australia's freedom of information regime.

Under long-standing freedom of information laws, pending requests can be deleted when a minister leaves their role, creating a loophole for scandal-plagued ministers to avoid scrutiny.

In response to a story on ABC news we wrote to ask the Immigration Minister Alex Hawke why the adopted son of two recognised refugees from Afghanistan had not been granted a visa, when the couple and their natural children have been.

More information: Read our letter to Alex Hawke

The Office of the Information Commissioner has ordered US company Clearview to stop collecting photos taken in Australia and remove those in its collection as they were ruled to have breached privacy rules. The company had offered a free trial to police to access its database of millions of photos - assembled by scraping facebook and other publicly available websites without consent from anyone.

The company suggests the data is governed by US, rather than Australian law, as it is stored in the US.

Wendy Harmer and Robbie Buck spoke to NSWCCL Treasurer Stephen Blanks, who said:

"This is really a move towards a surveillance state. the idea that just because you've done nothing wrong you've got nothing to worry about is just a false view. The risks are real."

"There is a  real problem if it can escape the laws of any particular country by forum shopping."

"Innocent people will be subject to unfair investigations as a result of being misidentified by these databases."

Fingerprints, iris, palm and voice recognition are all more accurate than facial recognition; people who are female, black and aged 18-30 are 34% more likely to be subject to misidentification than fair skinned males. 

Stephen calls for a moratorium on the technology, commenting that it is "racing ahead of regulation" with government agencies like police forces are entering into agreements with companies such as Clearview without understanding the ethical issues. 

Listen to the full interview: Privacy concerns over face recognition AI real, says expert

In a landmark development for environmental activists, the UN recently recognised the right to a clean, healthy and sustainable environment. 

With 24% of global deaths linked to environmental threats according to the WHO, it is to be hoped that this right could be used at this week's COP-26 meeting in Glasgow and beyond to further climate action. 

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

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.

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; 

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