25 February 2021 

PUBLIC STATEMENT

Asylum seekers who are denied visas by Mr. Dutton, the Minister for Home Affairs, will now face fees of $3,330 to appeal to the Federal Circuit Court to have his decisions reviewed and overturned.  This is a clear, deliberate and unconscionable action by the Morrison Government to deny asylum seekers access to the Courts and to justice.  

Media coverage: Innovation Aus

The government-funded cybersecurity research centre has thrown its support behind the proposed “extraordinary” new hacking powers for the Australian Federal Police, its position that is at odds with human rights, civil liberties and digital rights groups, as well as a group of Senators who have all raised significant concerns about the new laws.

In a submission to government, the Cyber Security Cooperative Research Centre (CSCRC) said the Identify and Disrupt Bill, which hands sweeping new powers to the AFP and the Australian Crime and Intelligence Commission (ACIC) to hack into the devices and networks of suspected criminals, is proportionate, appropriate and safe.

The NSWCCL said that the new powers are “next in an accelerating wave, strengthening the powers of the state without any humility about the cumulative erosion of democratic freedoms they entail”.

“This bill builds on this ominous trend and takes it to a new level, providing unprecedented new powers for law enforcement to interfere and ‘disrupt’ communications of citizens without effective restraint. The abuse of power this bill enables will happen. Enough is enough,” the NSWCCL submission said.

A coalition of digital rights and civil liberties organisations said that the powers amount to “state-authorised hacking”.

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NSWCCL made a submission to the Legal and Constitutional Affairs Committee Inquiry into the Migration and Citizenship Legislation Amendment (Strengthening Information Provisions) Bill 2020 [Provisions].

If passed, this bill would cripple the ability of litigants to have access to information that is critical for their cases for retaining a visa, becoming citizens or retaining their citizenship.

While it protects the constitutionally guaranteed powers of the High Court, the Federal Court and the Federal Circuit Court to know whatever information is relevant to their reviews of ministerial decisions, it would prevent other courts and other bodies from having such access. And vitally, it not only would allow what it defines as ‘Protected Information’ to be concealed from litigants and their counsel, it would allow them to be denied even the information that such information exists. In effect, only the Minister could use the information in court.

This is unacceptable. It is contrary to Australia’s international obligations. But most importantly, it is a severe intrusion on the rights of a person to a fair hearing. It overturns the basic legal principle of equality before the law.

More information: read our full submission

Media Coverage: iTWire

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Media coverage: Innovation Aus

'The federal government’s proposed new hacking powers for the Australian Federal Police are a “catch-all formula for abuse” and resemble something from the Hollywood film Minority Report, the NSW Council for Civil Liberties says.

The federal government late last year quietly introduced legislation to Parliament handing broad new powers to the AFP and Australian Crime and Intelligence Commission (ACIC) to hack into the computers and networks of suspected criminals.

In its submission, the NSW Council for Civil Liberties (NSWCCL) said it was time to draw a line in the sand over increasing laws that erode privacy under the guise of preventing “serious crime”.

The council said the latest legislation is the “next in an accelerating wave, strengthening the powers of the state without any humility about the cumulative erosion of democratic freedoms they entail”.

“This bill builds on this ominous trend and takes it to a new level, providing unprecedented new powers for law enforcement to interfere and ‘disrupt’ communications of citizens without effective restraint,” the NSWCCL submission said.

“The abuse of power this bill enables will happen. Enough is enough.”

The NSWCCL said that the data disruption warrants and account takeover warrants are “crime prevention” tools that resemble something from the science-fiction movie Minority Report.

The powers will apply to a wide range of potential crimes – any carrying at least three years of jail time – not just those referenced by the government in announcing the laws, the submission said.

“This is an extraordinary catch-all encompassing fauna importation, fraud and importantly, such vaguely worded offences as ‘communication and other dealings with inherently harmful information by current and former Commonwealth officers’,” the NSWCCL said.

“These secrecy provisions have already been used to intimidate whistleblowers in several high-profile cases over the last few years. They are framed in a way that prevents vital information regarding government wrongdoing from ever coming to the attention of the public.”

The NSWCLL said that the data disruption warrants, and account takeover warrants, are “crime prevention” tools that resemble something from the science-fiction movie Minority Report.

“We cannot accept a new species of warrant that is based on the notion that the role of law enforcement is to stop possible future offences from being committed where the breadth of their application is so wide,” the NSWCCL said.'

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Update 4 September 2021:

NSWCCL is disappointed that once again Government and Opposition have caved to unnecessary additional powers demanded by law enforcement. By passing the Identify and Disrupt Bill, the two major parties have introduced an unprecedented incursion onto civil liberties, giving law enforcement agencies the power to take over, copy, alter and delete the social media and other online accounts of ordinary people without proper oversight.

While justified under the guise of fighting child sexual abuse, the powers can be used to "disrupt" a broad range of offences including minor offences and to investigate whistleblowers.

The once science fiction notion ("Minority Report') that law enforcement should have extraordinary powers with a new type of "warrant" in order to prevent possible future crimes from being committed is now a reality in Australia - the latest in a two decades long process of expanding powers of law enforcement and spy agencies.

The Identify and Disrupt Bill hands sweeping new powers to the AFP and the Australian Crime and Intelligence Commission (ACIC) to hack into the devices and networks of suspected criminals. 

NSWCCL made a submission to the Parliamentary Joint Committee on Intelligence and Security (PJCIS) review into the Bill, in which we argued that the Bill is a catch-all formula for abuse of power without demonstrated need or regard for proportionality. 

On 1st February 2021, NSWCCL Vice-President and Convenor of the Civil and Human Rights Action Group, Jared Wilk, appeared at the House Standing Committee on the Environment and Energy hearing on the Climate Change (National Framework for Adaptation and Mitigation) Bill 2020 and Climate Change (National Framework for Adaptation and Mitigation) (Consequential and Transitional Provisions) Bill 2020.

It is a great honour to be stepping back into the role of President of the NSW Council for Civil Liberties for 2021 and I look forward to continuing the important work that was achieved by CCL during 2020, a year that refocused the attention of all Australians on the vital importance of our rights and freedoms and threw into sharp relief their fragility. The State and Federal Governments’ emergency responses to the COVID-19 pandemic graphically illustrated the need for CCL and like-minded organisations in civil society to remain vigilant in protecting our civil liberties and human rights.

Thanks to Nicholas Cowdery AO QC FAAL

But before I go on to outline some of the priorities we will pursue in 2021, I would like to thank Nicholas Cowdery for his exemplary work as President of CCL from November 2019 until January 2021. He has been an exceptional spokesperson for the organisation and has advocated on many issues including drug law reform, the inadequacy of police responses to survivors of sexual assault, a coherent government drug and alcohol policy based on health and social foundations rather than criminal law, the over-use of strip-searching, laws to enable voluntary assisted dying, truth in political advertising, the need for a national integrity commission, raising the minimum age of criminal responsibility to 14 and justice for First Nations Australians. 

His advocacy for the balanced use of emergency powers during the pandemic was outstanding and his concerns about the lack of parliamentary oversight of those powers during periods of suspension were apt. He rightly observed at the time that 'even the darkest days of the world wars did not force parliament to close for extended periods'.

These are only a few of the issues through which he so effectively led CCL. I’m sure you will join me in thanking him for his remarkable achievement. It is a great privilege to be taking on the role after his inspiring term as President.

You can read Nicholas Cowdery's Outgoing President's report HERE.

Priorities for 2021

The extraordinary year of 2020, which saw the dramatic curtailment of our freedom of movement, tracing of our movement and other restrictions by governments grappling with a health crisis, threw into sharp relief the need for a Human Rights Act in NSW, and a Federal Charter of Rights. Our advocacy for these will remain a priority in 2021.

The inequities faced by First Nations people in the justice system, and society more broadly will be a major focus of CCL in 2021, as we support the implementation of the Statement from the Heart and work with members of First Nations peoples to advocate for solutions that are community-led and aligned with principles of self-determination.

We will continue our dogged advocacy for a better system for people seeking asylum in Australia, for an improved visa system for refugees and for community solutions rather than detention, which is unjustifiably costly both in financial and human terms.

In the age of big data, it is essential that we continue our effective work on data retention and privacy, freedom of speech and censorship, open government and whistle-blower protection. 

We must also remain vigilant to secure fundamental rights in the face of ever-greater powers being sought and granted to Australian authorities in the name of national security and counter-terrorism.

The importance of the right to protest also came into sharp focus in 2020, with Black Lives Matter demonstrations across the globe. Police responses to demonstrators is of continuing concern as is the over-use of strip searching, including of minors, and the inappropriate use of sniffer dogs. Our work in these important areas will be ongoing.

Other priority issues will include women's rights, climate justice, LGBTIQ rights including limiting the ability of schools to discriminate against students and teachers and resisting pressure to weaken anti-discrimination laws.

So, we certainly have our work cut out for us in 2021. I am looking forward to the challenge!

Pauline Wright
President NSWCCL

Outgoing President’s Report, 27 January 2021

Nicholas Cowdery AO QC FAAL

It has been a great privilege to serve as President of the NSWCCL from the AGM on 23 October 2019 until today (with re-election at the AGM on 21 October 2020). I agreed to nomination to the position on condition that I would serve for 12 months (and the minutes of the AGM bear me out). Pauline Wright was then not standing for customary re-election after one term because of her Law Council of Australia presidency in 2020; but she has graciously agreed to return as President now that her Law Council duties have ended.

Those 15 months have been a disruptive time for everybody and no less for the NSWCCL. The first few months were routine enough, but face-to-face activities were unable to proceed after the pandemic was declared and new challenges were thrown up for NSWCCL. Our meetings since March 2020 have been by Zoom or by telephone and we have been unable to hold any gatherings that normally bring members together and facilitate networking and the exchange of ideas in areas of interest.

Our highly successful annual dinners of the past and the Marsden Memorial Lecture have had to be suspended. Instead, on 11 September 2020 we held a very successful online panel discussion focused on Indigenous issues, with the Award for Excellence in Civil Liberties Journalism being announced at the end. We also joined with the Affinity Intercultural Association for a webinar on 2 September 2020. I hope there will be scope for more online events as we continue in the COVIDsafe mode.

Alongside these events the customary work of NSWCCL has proceeded. We have responded to the novel civil liberties challenges of SARS-CoV-2, made many media appearances on that and other issues, met with key players in the human rights and law enforcement areas and made many submissions to parliamentary inquiries and statements for publication on the website. We have continued to liaise with other civil liberties groups around the country. We have not taken a virus-induced holiday.

I give thanks to all who have been active in our campaigns and in the ongoing administration of NSWCCL. I particularly thank our Secretary, Assistant Secretary, Treasurer and Executive Officer who have done mighty work to keep NSWCCL relevant and effective. Many members of the Committee also deserve our thanks – they know who they are.

When I accepted nomination for President I issued a challenge for the next generation to come into leadership positions. I said the organisation needs to be rejuvenated by those at the top, to reflect the increasing interest and involvement of young people in a world where human rights challenges continue to emerge.

I am pleased to say that after some inertia, that message may have got through. The Committee and general membership have been augmented by much younger, smart and committed people, and that is excellent.

I am willing to accept appointment to the Committee and remain until the next AGM; but the future of NSWCCL belongs to all of you who accept the challenges to actively maintain, preserve and protect fundamental civil liberties in Australian society.

Media coverage: The Star Observer

The New South Wales Parliament has permitted One Nations leader Mark Latham to lead an inquiry into his own controversial Bill.

The Parliament committee headed by Mark Latham is inviting submissions through an online questionnaire and LGBTQI advocacy organisations are asking the community to register their protest against the Bill. 

The Education Legislation Amendment (Parental Rights) Bill 2020 says its aim is to give parents, not schools, the primary responsibility “for the moral, ethical, political and social development of their children.” The Bill allows parents to object to the teaching of anything related to gender identity and sexuality in schools if it contradicts their values. 

The danger from the Bill is not just to the LGBTQI community. The NSW Council For Civil Liberties said that if the Bill is enacted, “parents could object to curriculum that covers Australian Indigenous history, the Stolen Generations, climate change, immunisation, evolution, LGBTIQ+ people, different cultures and religions, science, refugees and people seeking asylum.”

The Council said it was important to ensure the NSW Parliament “rejects this unnecessary and harmful bill.”

The submissions to the inquiry into Mark Latham’s Education Legislation Amendment (Parental Rights) Bill 2020 can be made by filling the online questionnaire here. 

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Media coverage: Brisbane Times

The Morrison government is under pressure from within to increase the caps on the number of Australians allowed back into the country after Emirates abruptly suspended flights and cut off a major option for stranded travellers trying to get home.

Stephen Blanks, a spokesman for the NSW Council of Civil Liberties, said it was extraordinary that Australian citizens were unable to return to Australia because of quotas on the number of arrivals.

"The quotas have been set at a level where Australian citizens are left in distressing situations," he said. "There should be a scheme for ameliorating the hardship that Australian citizens face overseas as a result of this government policy."

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On 18 December 2020, the Auditor-General for New South Wales, Margaret Crawford, released a report criticising the effectiveness of Service NSW’s handling of customers’ personal information to ensure privacy. NSWCCL has long held concerns over the manner of the use, collection, and storage of personal information of NSW citizens by the NSW government. The damning report highlights the lack of understanding and commitment to proper privacy practices in the NSW public service.

The Council for Civil Liberties (NSWCCL) thanks the Department for Communities and Justice for its invitation to make a submission concerning the Review of Section 293 of the Criminal Procedure Act 1986.

Excerpt:

View submission

Media coverage: Daily Mail

'Heavy-handed fines should be reserved for people who deliberately, flagrantly
and dangerously flout the rules, not for people who are confused and make
an innocent mistake.'

- NSWCCL Spokesperson Stephen Blanks

A young couple accused of 'fleeing' quarantine at Melbourne Airport on New Year's Day could sue Victoria's Health Minister for defamation if found innocent, experts claim.

The couple, from Goulburn in NSW, have apologised for leaving the airport but said they had a green zone permit and made an innocent mistake due to the confusion caused by the rapidly changing regulations.

Victorian Health Minister Martin Foley said on Saturday that the pair would each be fined at least $19,000 for breaching Victoria's public health state of emergency. 

But both Victoria Police and Victoria's Department of Health and Human Services confirmed to Daily Mail Australia that their organisations were still investigating.

NSW Council for Civil Liberties spokesman Stephen Blanks said the pair may have an action for defamation when outed as being guilty despite ongoing investigations. 

'Government ministers need to be careful to ensure not to accuse people of being guilty until all the relevant investigations have been carried out,' he told Daily Mail Australia on Sunday.

Mr Blanks said while it was possible Victoria could issue the pair on-the-spot fines, they still have the right to go to the courts and dispute the alleged offense - and that right had to be respected.

He said heavy-handed fines should be reserved for people who deliberately, flagrantly and dangerously flout the rules, not for people who are confused and make an innocent mistake.

'When these rules change day-by-day as they are at the moment, it's very onerous for people to know what they are and aren't allowed to do,' he said. 

'The objective here is to generate community compliance with the orders and criminalise people with heavy fines who may well have made an innocent mistake - if they made a mistake at all.

'It doesn't create the right environment in the community to create co-operation and compliance.' 

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The Law Enforcement Conduct Commission furnished its report: Inquiry into NSW Police Force strip search practices to Parliament on Tuesday 15th December, 2020. 

It is the final report in the Commission’s ongoing inquiry into police strip search practices. The Inquiry represents a significant body of work, comprising a total of seven investigations, as well as analysis of NSW Police Force policies and training, and oversight of police investigations of complaints about strip searches.

Senate committee calls on Parliament and government to remove barriers to oversight of emergency-related delegated legislation

The Senate Standing Committee for the Scrutiny of Delegated Legislation has today tabled the interim report of its ongoing inquiry into the exemption of delegated legislation from parliamentary oversight, repeatedly referencing the NSW Council for Civil Liberties submission.

The interim report makes 18 recommendations to government and the Parliament to address systemic barriers to parliamentary oversight of delegated legislation made in times of emergency.

NSWCCL wrote to ALP and Cross-bench Senators regarding the increase in filing fees in the Federal Circuit Court for migration-related matters. The fee will rise from $690.00 to $3,300.00. NSWCCL urged Senators to vote to disallow this instrument.

1 December 2020

Dear Senator,

Federal Court and Federal Circuit Court Amendment (Fees) Regulations 2020

On October 29 this year, the Government introduced a swingeing increase in filing fees in the Federal Circuit Court for migration-related matters. The fee will rise from $690.00 to $3,300.00 on January 1 next year.

The New South Wales Council for Civil Liberties is deeply concerned by this change, as it will prevent many people from obtaining a review and reversal of unlawful, unjust, adverse decisions.  It will prevent others from being able to afford legal representation too, thus lessening their chances of having mistakes exposed.

Update 18 October 2021: with this legislation now listed for a second reading this week, we again wrote to all cross-bench senators reiterating our opposition to this bill and encouraging them to vote against it.

NSWCCL wrote to cross-bench Senators urging them to oppose the Strengthening the Character Test Bill.

1 December 2020

Dear Senator,

I am writing on behalf of the New South Wales Council for Civil Liberties, asking you to vote against the Strengthening the Character Test Bill, when, and if, that returns to Parliament.

Despite what has been said in the Explanatory Memorandum, this bill is not about outlaw motorcycle gangs, murderers, people who commit serious assaults, sexual assault of aggravated burglary. People who are convicted of such crimes do not receive sentences of less than a year, unless their actual offences are minor—and if so, they are known not to be a danger to the community.  People who receive sentences of a year or more are dealt with by the existing legislation.

Media coverage: 9News

Media coverage: 7News

Could your boss make you get the COVID-19 vaccine?
The answer is more complicated than you think.

'NSW Council for Civil Liberties spokesperson Stephen Blanks agreed the issue was a complex one.

“[It] depends on the circumstances of the employment and the employee; there is no blanket rule for everyone,” he told 7NEWS.com.au.

“There could be more justification [for a mandatory jab] for staff working in a high-risk environment who have exposure to many members of the public, but there needs to be recognition that some employees may have a legitimate reason for not having the vaccine.

“These may range from religious belief through to personal health reasons, meaning a vaccine is not appropriate,” Blanks said.'

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