Congratulations to the winners of NSWCCL's 2020 Awards for Excellence in Civil Liberties Journalism. The standard of those nominated has been exceptionally high, which made the task of the judges so much more difficult.

From the nominees, the judges named shortlists of 3 in the Young Journalists category and 4 in the Open category. We compliment all entrants on their work and hope that you will continue in similar vein in the future.

The winner of the Young Journalist's category: Luke Henriques-Gomez of The Guardian for a series of articles on the Robodebt scheme.

'This young journalist’s articles on the Robodebt debacle exposed federal governmental policy inadequacy and ministerial failure regarding the use of technology and data management in social support programs. They opened a window on current approaches to welfare policy and their failure to observe the principles of democratic governance by being evidence-based and according procedural fairness to affected persons. This failure and indifference led to official cruelty which the articles helped to change by opening up broad debate on the issues raised.'

Congratulations Luke.

The winner of the Open category is shared: Kate McClymont and Jacqueline Maley of the Sydney Morning Herald for their piece on the Dyson Heydon affair.

'These journalists’ exclusive article on the Dyson Heydon affair demonstrated how deeply entrenched attitudes towards the abuse of women remain in our social and employment structures. They also raised wider critical questions concerning professional transparency, governance and power in the legal profession. This was courageous reporting that was respectful of sources and affirmed freedom of the press in Australia.'

Congratulations to Kate and Jacqueline.

NSWCCL’s online First Nations justice panel discussion was held on 11 September 2020, and featured Judge Myers AM, Sarah Hopkins, Teela Reid and NSWCCL President Nicholas Cowdery AO QC. Our panelists generously shared their knowledge, expertise and heart in speaking about over-incarceration of Indigenous Australians, systemic racism, 'just' policing, the Uluru Statement from the Heart and the black lives matter movement.

The panel discussion was a call to action in relation to the implementation of the recommendations of the ALRC’s report “Pathways to Justice”, including a focus on the crucial need for a commitment to justice reinvestment and specialty courts (such as the Walama Court in NSW).

 8 September 2020

 Systemic racism and the over-incarceration of Indigenous people must be addressed.

NSWCCL’s upcoming online panel discussion, on 11 September 2020 at 6:30pm, featuring Judge Myers AM, Sarah Hopkins, Teela Reid and NSWCCL President Nicholas Cowdery AO QC is a call to action in relation to the implementation of the recommendations of the ALRC’s report “Pathways to Justice”, including a focus on the crucial need for a commitment to justice reinvestment and specialty courts (such as the Walama Court in NSW).

In 2018 the Australian Law Reform Commission (ALRC) was asked to consider laws and legal frameworks that contribute to the incarceration rate of Aboriginal and Torres Strait Islander peoples. Aboriginal and Torres Strait Islander adults make up around 2% of the national population, but constitute 27% of the national prison population. The ALRC Report was released in March 2018 and includes 35 recommendations, most of which have simply not been addressed.

His Honour Judge Matthew Myers AM, Commissioner in charge of the ALRC Inquiry, said that while the problems leading to the over-representation of Aboriginal and Torres Strait Islander peoples in prisons are complex, they can be solved,

“Law reform is an important part of that solution. Reduced incarceration, and greater support for Aboriginal and Torres Strait Islander people in contact with the criminal justice system, will  improve health, social and economic outcomes for Aboriginal and Torres Strait Islander peoples, and lead to a safer society for all.”

Since 2011 Just Reinvest NSW has been working to support communities to explore and establish justice reinvestment initiatives, including in Bourke, NSW. The focus is to reduce imprisonment rates by directing resources into building strong and safe communities, rather than funding prisons.

Sarah Hopkins, Chair of Just Reinvest NSW, believes that what is required is a shift in the way we view prevention, intervention and justice:

“If we are real about this, what is needed is not just a shift in funding out of prisons and the criminal justice system into crime prevention and early intervention, but a more fundamental shift in power from government to communities, including power over resources. This is about community aspirations and resilience.”

Teela Reid, Wiradjuri and Wailwan woman, lawyer and human rights activist, says that if NSW is serious about protecting civil liberties, then it is time to get very uncomfortable with the status quo.

“The truth is Australia is a colony built on racism, it is written into the laws and operates within its institutions.  Systemic racism requires systemic change. If you deny racism exists, then you are part of the problem. This land always was, always will be sovereign Aboriginal and Torres Strait Islander land, sky and sea.”

Ms Reid asks if we are all prepared to confront our own power and privilege to dismantle the systemic racism that continues to oppress. She states that the Uluru Statement from the Heart and the Walama Court ‘are radical attempts to change systems in our search for truth and justice.’

In considering the journey of Australia’s First Nations peoples, NSWCCL President Nicholas Cowdery AO QC believes we need to understand the history of colonialism and dispossession that has led to the disadvantage experienced by Aboriginal and Torres Strait Islander communities. In order to walk with Aboriginal and Torres Strait Islanders ‘in a movement of the Australian people for a better future’ as the Uluru Statement invites, then we also must acknowledge the resilience of Australia’s Aboriginal and Torres Strait Islander peoples.

Mr Cowdery commented:

”Australia’s First Nations peoples constitute the world’s oldest living culture - over 65,000 years. Colonisation took away their land, languages and many traditions and has left them almost without a voice to power. That process has created social disadvantage leading directly to over-representation in prisons around the country.

…This panel will discuss how we reached this disgraceful situation, why now is the time to recognise the resilience of First Nations peoples and to do something about it – and what can be done, drawing upon a huge body of knowledge already assembled.”

2020 has been a challenging year for many individuals and communities. For those who have experienced financial hardship, or are not in a position to pay for a registration, NSWCCL is offering free registration.

“We want to share this important panel discussion with as many of our members and supporters, and beyond, as we can,” says Mr Cowdery.

Registrations - https://www.nswccl.org.au/tickets_2020_nswccl_fundraiser
Free invitation - https://www.nswccl.org.au/invitation_nswccl_2020_panel_discussion

The NSWCCL First Nations Justice panelists:

• Nicholas Cowdery AO, QC, President of the NSWCCL
• Judge Myers AM, lead Commissioner of the ALRC’s inquiry into Incarceration rates of Aboriginal and Torres Strait Islander Peoples
• Sarah Hopkins, Co-Chair of Just Reinvest NSW and the Managing Solicitor of Justice Projects at the Aboriginal Legal Service ACT/NSW
• Teela Reid, Wiradjuri and Wailwan woman, lawyer and human rights activist

The webinar discussion will be held on Friday 11th September at 6:30pm and will be moderated by the 2019 winner of the NSWCCL Award for Excellence in Civil Liberties Journalism, Richard Ackland AM. The 2020 NSWCCL Awards for Excellence in Civil Liberties Journalism will also be announced.

Download this statement as a PDF.

10^th July 2020

PUBLIC STATEMENT

NSWCCL has concerns regarding claims that a critically ill man from the New South Wales South Coast has twice been denied an exemption from undergoing hotel quarantine in Sydney, despite medical advice he self-isolate at home. 

The ABC reported (8^th July) that Stephen Evans, diagnosed with stage four oesophageal cancer in 2018, recently returned from Germany where he had a highly specialised lung procedure. NSW Health has twice refused Mr Evans’ request to self-isolate at home, stating that personal health circumstances must be balanced with ‘the requirement to implement the Public Health (COVID-19 Air Transportation Quarantine) Order 2020’.

NSWCCL made a detailed submission to the Senate Select Committee on COVID-19 in June. We lobbied for the formation of this important Committee as a way of providing otherwise absent parliamentary scrutiny of the Government’s huge response to the COVID crisis in the disturbing absence of regular parliamentary sittings.

We are pleased that the Committee, which has wide terms of reference, began its work immediately on its formation both by calling for this Inquiry and initiating public hearings – in the first month largely with Government agencies and ministers.

The Council for Civil Liberties (NSWCCL) thanks the Legal and Constitutional Committee (the Committee) for its invitation to make a submission concerning the Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill 2020 (the bill). The bill is a modified version of a bill that was introduced in 2017 (the 2017 bill).

NSWCCL would like to speak further to these arguments when the bill is considered by the Committee.

Recommendations:

This bill should be rejected.

If the bill is to proceed, dogs should not be able to be used for searches in immigration detention centres.

View submission

Last month, 23 June 2020, three members of the NSWCCL Committee, President Nicholas Cowdery AO, QC, Vice-President Dr. Eugene Schofield-Georgeson and committee member Jared Wilk (co-Convenor of Human Rights and Civil Liberties Action Group), met with NSW Commissioner for Police Mick Fuller and Deputy Commissioner Jeff Loy. Law and policy issues relating to strip searching, drugs, protests and policing of Indigenous people were discussed.

The NSWCCL is grateful that the Commissioner and his deputy were willing to engage in meaningful and open dialogue with us. We consider this meeting and the willingness of the Commissioner to engage in future dialogue to be a positive development and an opportunity for constructive discussion in relation to the issues which are important to the Council’s principles and values.

We will continue to advocate strongly for improvements and reform in relation to law, policy and internal policies and guidelines which are relevant to policing and to work with the community to strengthen and protect civil liberties and human rights in NSW.

NSWCCL has written to a number of Senators, members of the Legal and Constitutional Legislation Committee, regarding the inquiry into the Migration Amendment (Prohibiting Items in Detention Facilities) Bill 2020. 

The Refugee Action Collective of Victoria (RACV) has proposed that the Legal and Constitutional Committee ask the Department of Home Affairs a large number of questions about matters of fact before they meet on July 3. 

Although the New South Wales Council for Civil Liberties believes that there are strong grounds for rejecting the Bill outright that are for the most part independent of the matters that the RACV raises, we nevertheless urge you to do as the RACV requests.

Media coverage: 7News

As individual cities such as Boston and San Francisco in the United States are banning the use of facial recognition technology as part of the #BLM response, 7-Eleven in Australia has launched the technology across all of its 700 Australian stores.

The convenience store chain will use the facial recognition software within its ‘Rate It’ customer service tablet, and “not for any other purpose”.

“The use of facial recognition within the Rate It tablet is to ensure that the feedback is accurate and valid, and given customer feedback is so important to us we don’t want the system being ‘gamed’.

It’s an assurance that doesn’t sit well with Stephen Blanks from the NSW Council for Civil Liberties.

“This kind of information gathering should be against the law. It’s certainly against good privacy practice and principles.”

Blanks said collecting the data of people trying to provide feedback made little sense.

“They are creating an incentive not to use the feedback tablet – which is contrary to what they’re wanting to achieve.”

7NEWS.com.au understands that an element of the software’s facial recognition is to discourage 7-Eleven staff from self-rating during a shift.

“That’s not an adequate justification for gathering the information,” Blanks said.

Read more

Media coverage: NineNews, Sydney Morning Herald

NSWCCL President and former NSW DDP, Nicholas Cowdery AO QC, joins 29 prominent Australians as signatories to an open letter coordinated by The Australia Institute, calling for truth in political advertising laws that are nationally consistent, constitutional and uphold freedom of speech.

New polling by The Australia Institute released in conjunction with the open letter shows nine in 10 Australians (89%) say Australia should pass truth in political advertising laws. 

Signatories to the open letter include former political party leaders and politicians, Dr John Hewson, Cheryl Kernot and Michael Beahan; former Supreme Court judges, The Hon Anthony Whealy QC, The Hon Paul Stein AM QC and The Hon David Harper AM QC, as well as barristers, community leaders, business people and other prominent Australians.

'Australians want advertising to be truthful and transparent. They expect the media to self-regulate, and want laws that would penalise misleading and deceptive political ads with fines, forced retractions or losing public funding. The lack of truth in political advertising regulation is leading to declining public trust in government, politicians and parliament.

Enough is enough: we need truth in political advertising before the next election.

Political advertisements that are deceptive and misleading interfere with the public’s ability to make informed decisions.

We need truth in political advertising laws that are nationally consistent, constitutional and uphold freedom of speech.'

Read more or see the letter as published in the SMH (17th June 2020)

Refugee Week June 14 - June 20, is Australia’s peak annual activity to raise awareness about the issues affecting refugees and celebrate the positive contributions made by refugees to Australian society. Originally celebrated in 1986, Refugee Week coincides with World Refugee Day (20 June).

Refugee Week provides a platform where positive images of refugees can be promoted in order to create a culture of welcome throughout the country. The ultimate aim of the celebration is to create better understanding between different communities and to encourage successful integration enabling refugees to live in safety and to continue making a valuable contribution to Australia.

Media coverage: Byron Bay Echo

- Hans Lovejoy, editor 

'With attention fixated on injustice, policing and black lives, the NSW Council for Civil Liberties (NSWCCL) is just one voice of sanity in a country awash with racism and bigotry.

Based in Sydney, they are a small group of lawyers committed to educating the public and advocating for the most vulnerable. NSWCCL said in statement regarding the marches, ‘There have been 432 Indigenous deaths in custody since the 1991 Royal Commission – including the recent death of Tanya Day, which the coroner found to be preventable – and its recommendations have never been fully implemented.

‘To our knowledge, no one has ever been convicted in relation to those deaths. Indigenous peoples are over-policed and over-incarcerated, with adults 15 times more likely to be incarcerated than non-Indigenous Australians and juveniles 26 times more likely to be incarcerated. The Australian Bureau of Statistics reported in December 2019 that while Aboriginal and Torres Strait Islander people make up around three per cent of the total Australian population, they account for 29 per cent of the total adult prisoner population in Australia’.'

Read more

The NSWCCL has written to the Commissioner of Corrective Services NSW, the NSW Health Minister and the CEO of Justice Health to express concerns in relation to the health and safety of persons in custody in NSW in light of the current COVID-19 pandemic.  

The Council notes that there have been no confirmed cases of COVID-19 within the inmate population and that 23 have been isolated for testing. We note that there was a confirmed case of a healthcare employee at the Long Bay prison hospital in March 2020. 

Media Coverage: Sydney Morning Herald

A former judge and top prosecutor says video footage of an Indigenous teenager falling face-first after being kicked off his feet by a NSW police officer is on its face "evidence of an assault".

Former NSW director of public prosecutions Nicholas Cowdery, QC, president of the NSW Council for Civil Liberties, said the video raised questions about the lawfulness of the arrest because the risk the teenager would carry out his threat appeared "slight".

"Arrest is really only lawfully available to prevent further offending, to prevent flight or to ensure attendance at court," he said.

In Mr Cowdery's view, it was not reasonable to use a sweep kick when the teenager was "under restraint and standing calmly". He believed the officer should be "charged with assault and re-trained".

Read more

NSWCCL affirms our heartfelt support for the Black Lives Matter movement and its goals in seeking to eradicate systemic racism from our societies. We encourage all our members and those sympathetic to the cause of human rights and civil liberties to likewise support the BLM movement in any way reasonably possible.

NSWCCL has always acknowledged the pervasiveness of institutional racism in Australian society, ever present even 232 years after the brutal colonisation of this continent on racist terms. We strongly support all attempts to remedy this history of injustice and end the systemic disadvantage faced by Aboriginal and Torres Strait Islander peoples. Foremost among the injustices committed against indigenous peoples are those perpetrated by the criminal justice system.

Discrimination and unreasonable violence at the hands of police is an ongoing concern, as the cases of David Dungay Jr and the incident in Surry Hills recently emphasised. There have been 434 indigenous deaths in custody since the 1991 Royal Commission – including the recent death of Tanya Day, which the coroner found to be preventable – and its recommendations have never been fully implemented. To our knowledge, no one has ever been convicted in relation to those deaths. Indigenous peoples are over-policed and over-incarcerated, with adults 15 times more likely to be incarcerated than non-indigenous Australians and juveniles 26 times more likely to be incarcerated. The Australian Bureau of Statistics reported in December 2019 that while Aboriginal and Torres Strait Islander people make up around 3 per cent of the total Australian population, they account for 29% of the total adult prisoner population in Australia. 

NSWCCL calls for the implementation of the 1991 Royal Commission recommendations and the recommendations in the Uluru Statement from the Heart as a start in the ongoing struggle to end these shameful outcomes.

In relation to the protests on June 6, 2020, NSWCCL supported the right of people to rally in accordance with the decision of the NSW Court of Appeal authorising the assembly. It seems the protests were orderly and respected the public health imperative while remaining truly powerful. Police and protestor seemed largely to demonstrate appropriate respect and restraint. However, the worrying incident at Central Station involving the pepper spraying on protestors may raise serious questions.

Community anger and distress over the last-minute moves by the government and the police to prohibit the protest rally would not be so strong had it not been for the unexplained inconsistency in official responses. For example, a recent protest in Sydney boasted of thousands of attendees in clear contravention of the Public Health Orders and the government and police reacted very differently. There was also widespread confusion over the inconsistency between the response of the South Australian Government and Police to protests in Adelaide, which was to exempt that protest from the effect of the COVID-19 regulations, and the response in NSW. 

We urge all parties to bring their attention to driving systemic changes to achieve much needed justice for Indigenous Australians and continue exercising the restraint called for in a liberal society governed by the rule of law.

Media coverage: Sydney Morning Herald

A NSW Supreme Court judge has condemned the treatment of a 35-year-old Indigenous man with a mild intellectual disability who has been subjected to a tough supervision order restricting his movements for more than a decade, saying he has not been a "truly free man" since his teens.

The five-year extended supervision order (ESO) made by the court in 2009 was "still current, 11 years later" because the clock stopped running every time he was imprisoned for even minor breaches of conditions.

Former NSW Director of Public Prosecutions Nicholas Cowdery, QC, who is now president of the NSW Council for Civil Liberties, said the legislation introducing ESOs and other orders "was radical and controversial at the time" and was based on "a risk of future offending of a serious kind" that was difficult to predict.

"It is a form of punishment for future conduct that may not occur. Nevertheless, Parliament has the power to legislate this way in order to protect the community, but within limits," he said.

Mr Cowdery said the laws provided "a powerful rod for the backs of disadvantaged or excessively targeted groups in the community, including Indigenous people, who may be subject to such orders".

"They become an easy tool for law enforcement to use to unreasonably seek to control such people."

Read more

Media coverage: Canberra Times

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