NSWCCL has made a submission to the Joint Standing Committee on Migration Inquiry into the Ending Indefinite and Arbitrary Immigration Detention Bill 2021.

In our view, passing the Ending Indefinite and Arbitrary Immigration Detention Bill into law is morally and legally necessary. The Bill corrects the deviation from human rights and international norms in the course the government has taken in its treatment of refugees and unauthorised arrivals under the domestic legislative framework.

There are 1,513 people in immigration detention facilities, including 1,276 in immigration detention on the mainland and 237 people in immigration detention on Christmas Island. There are also 137 people effectively in detention on Nauru and another 145 people effectively in detention on Manus Island and PNG. The suffering of unauthorised entrants to this country under Australia’s system of indefinite mandatory detention is well documented. Indefinite detention is inhumane and cruel. Loss of liberty is one of the greatest punishments that humans bestow on each other. As a nation, we are guilty.

As the Djokovic saga ended, the media attention has moved on, but many asylum seekers and refugees remain in detention.

Some of these men have spent most of their teenage years detained by the Australian Government. NSWCCL continues to campaign for their release.

For one of their stories, view this video. 

The Federal Government is responsible.

CCL, and numerous organisations have been warning the Morrison Government of the threat COVID-19 poses to those in detention. These include the Australian Human Rights Commission, the Commonwealth Ombudsman, the Australasian Society for Infectious Diseases and the Australasian College for Infection Prevention and Control.

Most have been urging the government to close immigration detention centres and release the detainees into the community, because of the risk of COVID-19 infection getting in.  The worry was, and is, that the conditions inside are such that if any detainee, or any guard for that matter, contracted the virus, it would spread quickly throughout the centre.

Our President Pauline Wright commented that 'the new reasoning used by Mr Hawke [to cancel Djokovic's visa] “smacked of arbitrariness” and highlighted the undue extent of the minister’s discretionary powers.' in The Age.

Full article: ‘Dangerous in a democracy’: Civil rights groups’ alarm at government’s Djokovic case The Age 16 Jan 2022

"To see the sweeping powers that our minister does have is a wake up call for a lot of people within Australia ... It does set a dangerous precedent that people could be deported for what they believe."

Our President Pauline Wright speaking to Sky News about the deportation of Novak Djokovic.

NSWCCL joins with other human rights groups and environmental groups in condemning the increasingly harsh and disproportionate laws and actions taken against climate and environmental protestors in recent years, and supports victims of such laws and actions. This phenomenon is not discrete to New South Wales, with a prosecution of a climate defender dismissed in Western Australia this week, and a significant public campaign against proposed changes to clamp down on protest in the United Kingdom.

Stewart Perrie comments in Lad Bible that the deportation of Djokovic "has raised a few eyebrows in the realm of civil liberties". He quotes our President:

Pauline Wright, president of the NSW Council for Civil Liberties, said the government was drawing a long bow to think he was a poster boy for the anti-vaxx movement.

"Do the comments in 2020 disentitle him from playing a tennis game in Australia in 2022?" she said.

The Canberra Times quotes NSWCCL's secretary Michelle Falstein and ANU Associate Professor Ron Levy, discussing the potential for a legal challenge if NSW forces residents to report their positive COVID-19 rapid antigen test results.

NSWCCL has made a submission to the Inquiry into Religious Discrimination Bill 2021 and related bills. 

It is our view that the suite of bills, in their current form must be withdrawn for reconsideration and redrafting, or opposed. They do not get the balance right between the important task of protecting religious adherents and non-believers from religious discrimination; and protecting others from discrimination by religious adherents and non-believers.

Update: The Privacy Act Review Report was released on 16 February 2023. NSWCCL was pleased to see that many of the recommendations the Council made in our submission were supported in the review.

A key recommendation in the review is ensuring the collection of, use and disclosure of personal information is fair and reasonable, including whether the “impact on privacy is proportionate to the benefit”. The Council supports the inclusion of non-exhaustive legislated factors that are relevant to determining whether the collection, use, or disclosure of personal information is fair and reasonable in the circumstances. However, it considers that clear guidance and examples of how these factors may apply in practice must be provided.

The standard of ‘fair and reasonable’ must be assessed by reference to the perspective of the individual, rather than being assessed from an APP entity’s perspective. We consider that having clear guidance from the outset, rather than waiting to see how the courts interpret such new provisions, will empower APP entities to appropriately assess whether any proposed data collection, use or disclosure would be unfairly prejudicial to, or unreasonable having consideration to the expectations of, the individual. In particular, to the extent that these factors do require consideration of what is ‘fair and reasonable’ from the perspective of the individual, the APP entity should be required to consider and satisfy each factor. This is because the protection of personal information and right to privacy should be fundamental to the Act, and should not be readily outweighed by business considerations.

The review has also proposed “direct right of action” that allows individuals to seek compensation in the Federal Court for a breach of privacy, which privacy advocates have long called for. To access the action, a claimant would first need to make a complaint to the Office of the Australian Information Commissioner (OAIC).

The Council supports the creation of a direct right of action. The NSWCCL considers it important that individuals can personally litigate a claim for breach of their privacy under the Privacy Act. However, the ability of individuals to do so is currently limited. The creation of a direct right of action would therefore give individuals greater control over their personal information by providing an additional avenue of redress under the Privacy Act. This, in turn, would encourage better compliance by APP entities of their privacy obligations under the Act.

However, the expansion of the OAIC’s funding is critical given that several proposals contained within the Discussion Paper involve the broadening of the OAIC’s current remit. Chronic underfunding will erode the effectiveness of any privacy protections the OAIC seeks to implement and support. To properly conduct both its existing and proposed activities, the OAIC must be adequately funded and consulted in respect of the resources it requires. The OAIC received limited funding to support its privacy initiatives in the 2021-2022 Federal Budget, despite a significant expansion in its activities with the onset of its Digital Economy Strategy.

NSWCCL made a submission to the Review of the Privacy Act 1988 advocating for urgent reform to modernise the Act and ensure it is fit for purpose in the digital economy. Privacy is a fundamental human right that is central to the maintenance of democratic societies and achieving respect for human dignity. In this regard, the NSWCCL submits that the right to privacy should be the paramount object of the Act and considers the two primary areas of concern in debates relating to privacy are:

NSWCCL made a submission to the Senate Standing Committee on Legal and Constitutional Affairs Inquiry into the Migration Amendment (Strengthening the Character Test) Bill 2021 [Provisions].

This is the third time that such a bill has been presented to Parliament. We made an extensive submission to the 2019 version of this bill, and those criticisms stand.

Australia has moved from deporting people who clearly are a danger and high risk, such as unrehabilitated murderers, to deporting people because a minister cannot be sure that they are not a danger to the community.

In fact, it we now accept deporting people to their likely death:

'counsel for the Minister suggested that much had changed since Ali and that the Minister was now more than prepared to proceed on the basis that Australia would breach its non-refoulement obligations and return the appellant to Iraq, even though it had been accepted that he was likely to be harmed or killed there'¹

Criticisms made by the Australian Human Rights Commission, the Australian Law Council, The Federation of Ethnic Communities Councils of Australia, the Parliamentary Joint Committee on Human Rights, the Scrutiny of Bills Committee and the Visa Cancellations Working Group also still apply.

We are disappointed that the Bill has been reintroduced without those criticisms being answered. 

The ABC reports that AI including facial recognition will soon be used in South Korea in a trial to track COVID positive residents. This effort will involve linking an AI facial recognition program to the CCTV surveillance system. According to the South Korean government this is an effort to ease the workload on contact tracing, but this move is worrying from a civil libertarian perspective. Our secretary Michelle Falstein, and Professor Toby Walsh - an AI expert from UNSW - spoke to ABC reporter Rhett Burnie on the issue

Update 17 August 2022: The Commonwealth Government has completed its 2021-2022 review of the Legislation Act 2003. NSWCCL continues to hold the view that the recommendations of the committee could have and should have gone much further. Read our blog post here.

NSWCCL has made a submission to the Review of the Legislation Act 2003. 

It is extremely concerning that the Government has chosen - in the wake of the powerful arguments made in the Committee report on the overreach of exemptions to disallowance - to double down on the notion that the Executive should have untrammelled powers to rule by decree without parliamentary oversight.

NSWCCL recently wrote to the Attorney General to comment on the exposure draft of the Privacy Legislation Amendment (Enhancing Online Privacy and Other Measures) Bill 2021 (Online Privacy Bill).

Perth Now has reported on the National Press Club of Australia's event at which our President Pauline Wright spoke, commenting that "integrity campaigners have renewed calls for a federal anti-corruption commission, as the government stalls on introducing legislation for the body's creation".

NSWCCL strongly objects to the LNP's outrageous attempt to rush the religious discrimination bills through the lower house today. 

The bills have been referred to an Inquiry, which will report before the next sitting of parliament.

Released by NSWCCL with the Nature Conservation Council and Oxfam Australia 

A coalition of concerned leaders and organisations has called on the NSW Government to take urgent action to prevent any more Aboriginal fishers being incarcerated or fined for exercising their Native Title rights.

Following revelations that Aboriginal people make up 4 per cent of people living on the South Coast, but account for 80 per cent of jail terms for fisheries offences since 2009, the NSW Legislative Council passed a resolution last week.

Raised by Labor MLC Michael Veitch, the motion supported Aboriginal cultural fishing and called for a review of all fines and prosecutions.

A transcript of NSWCCL President Pauline Wright's speech to the National Press Council on 1 December 2021.

As a civil liberties organisation, NSWCCL has in the past expressed serious reservations about anti-corruption agencies sitting outside the established justice system and wielding extraordinary coercive and covert powers. But we have cautiously shifted our position in response to the growing threat that increasingly complex forms of corruption pose to the public good in Australia. If the public interest is to be protected against the corrosive effects of serious lapses in integrity and systemic corruption, NSWCCL acknowledges that the establishment of anti-corruption agencies equipped with extraordinary investigative powers – albeit with proper constraints and safeguards – is both necessary and proportionate.

Corruption undermines the integrity of our political system. It distorts the policy-making process, diverts resources from public good objectives and undermines public trust in our politicians, governing institutions and public administration. Corruption harms everyone. It breeds inequality and injustice and undermines the ability of governments and people to fulfil their potential to achieve the common good, especially in challenging times.

The Age examines the Andrews government’s controversial pandemic laws, with legal experts saying they would include the most rigorous safeguards against human rights abuses in the nation.

NSWCCL's Vice President Josh Pallas said that he did not believe any other jurisdiction applied the same level of scrutiny as Victoria.

Mr Pallas said the NSW Ombudsman did not have jurisdiction when it came to issuing public health orders. Nor did the NSW Parliament use a joint committee chaired by a non-government MP to oversee public health orders.

Read the full article: Pandemic laws contain most rigorous safeguards in nation, say experts