Submission: NSWCCL endorses Constitutional Alteration to enshrine freedom of expression
On 20 August, NSWCCL made a submission to the Senate Legal and Constitutional Affairs Legislation Committee in regard to the Inquiry into the Constitution Alteration (Freedom of Expression and Freedom of the Press) 2019 (Constitutional Alteration).
The NSWCCL endorses wholeheartedly the proposed Constitutional Alteration which aims to enshrine the right of freedom of expression, including freedom of the press and other media, in the Constitution. This will be achieved by inserting a new Chapter IIIA and section 80A in the Commonwealth of Australia Constitution Act 1900.
More information:
- The inquiry website, with all submissions
- The NSWCCL submission as published on the inquiry website
Public statement: NSW cannot arrest its way out of the pandemic
It is essential that the people of NSW be united in their drive to combat COVID-19 and have confidence in the measures imposed by government. There can be no doubt that properly calibrated temporary measures designed to reduce the spread of the virus are required.
But on grounds of overreach and disproportionality, the NSW Council for Civil Liberties (CCL) is deeply concerned about the special powers to be given to the police, announced yesterday.
We are also concerned at the imposition of a curfew and limit of exercise to one hour per day on people within the 12 specified local government areas.
Read moreRDC: Why are people with a disability over-represented in the criminal justice system?
Last week the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability concluded Public Hearing 15, People with Cognitive Disability in the Criminal Justice System: NDIS Interface. This was a continuation of Public Hearing 11: The Experiences of People with Cognitive Disability in the Criminal Justice System. The Commission heard from a variety of lived experience witnesses, government agencies, disability services, academics and advocates about the nature of the ‘criminalisation of disability’ in the Australian context. Videos and transcripts of the hearings are available on the Royal Commission website:
Police Commissioner's comments a "failure of leadership"
The Sydney Morning Herald writes that, in a video to the force, NSW Police Commissioner Mick Fuller asked officers to "put community policing to the side" for 21 days. He went on to say "I have said before, if you write a ticket, and you get it wrong, I understand, and I won’t hold you to account for that."
Former NSW Director of Public Prosecutions and NSWCCL committee member and former President, Nicholas Cowdery QC, said while it was important all legitimate means be used to deal with the crisis, it was a “failure of leadership to tell officers in advance that if they get something wrong, there will be no consequences”.
Read moreAfghanistan: seven steps the government should take NOW
The news coming out of Afghanistan in the wake of the military withdrawal is as disturbing as it was tragically predictable.
NSWCCL is joining with the Refugee Council of Australia and others to call on the Government to take seven steps immediately:
Read moreNSW's Public Health Order and our right to avoid self incrimination
Update 11 Oct '21: The information we received following our GIPA requested was reassuring. However, we remain concerned: in the context of a public health emergency, it's vital that people do not fear any repercussions for telling the truth if this might incriminate them. We wrote again to the Commissioner noting that Police appear to have exercised restraint but also noting our ongoing concerns. We called for:
- The Public Health Orders to be amended to include a derivative use immunity to protect people who provide information or evidence to Police in the course of their enforcing the Public health Orders.
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Confirmation that information transferred to another agency because it is ‘necessary to do so for the purposes of protecting the health or welfare of members of the public during the COVID‐19 pandemic’ would not include information transferred to Police with the purpose of issuing a Penalty Infringement Notice or Court Attendance Notice.
Update 23 Aug '21: the Police Commissioner has responded to our letter, suggesting that we make a GIPA request for the information we requested, so that's what we've done. Stay tuned for the outcome.
NSWCCL is investigating concerns that a recent health order appears to remove our common law privilege against self-incrimination. We have written to the Police Commissioner to seek more information about what's happening on the ground in order to develop our response.
The health order
Our concerns relate to Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order 2021 as amended to commence at 5pm on 7 August 2021, made by Minister Hazzard under s. 7 of the Public Health Act 2010 (PHA).
Read moreConcerns remain over incarcerated people's wellbeing during the pandemic
In June 2020, NSWCCL raised concerns about the physical safety of people in prison during the pandemic, given the difficulty of social distancing within a prison environment.
While it is reassuring that, to date, the number of COVID-19 cases in custodial settings has been limited, we remain concerned.
Firstly, we have ongoing concerns about inmate safety and the risk of rapid transmission of COVID should it make its way into prisons. For example, it has been reported to us that in a wing of about 200 at Cessnock, there is no social distancing, inmates do not wear masks, inmates remain unvaccinated and jabs have not been offered to some inmates.
Read moreClimate: what will it take for our Government to act?
Newspaper headlines across the world echoed the words of UN Secretary-General António Guterres yesterday, announcing code red for humanity as the IPCC released its bleak Sixth Assessment Report on climate change. Meanwhile, Australia's status as a pariah nation, whose policies preclude an invitation to global summits, was cemented recently by news that a UN endorsed report ranked Australia "dead last in the world for climate action".
The IPCC report's conclusions - that human activities are unequivocally causing climate change and that urgent, concerted action is needed to limit that change to 1.5°C warming - are as alarming as they are unsurprising. Equally unsurprising was the Australian Government's response: denial and obfuscation.
Read moreEnvironmental planning instruments (SEPPs) report released
The NSW Legislative Council Regulation Committee Inquiry into Environmental Planning Instruments (SEPPs) released its report today.
Unfortunately the committee has not recommended that disallowance apply to SEPPs. It is difficult to understand the basis on which the committee has not recommended that disallowance apply to SEPPs. The argument put forward by the Property Council and Minerals Council that the applicability of disallowance would be inconvenient, and unnecessary if consultation were improved, appears to have been accepted uncritically.
Read moreIs parliamentary debate being gagged?
As at 10 August, 737 votes had taken place in the current sitting of the House of Representatives. Only 297 were votes on actual pieces of legislation, while a staggering 440 votes or 60% were for the suspension of standing orders or 'gag' orders to shut down debate.
This word cloud, from the APH website's divisions page, the source of our figures says it all. (Link no longer available.)
Read moreVaccine passports
Vaccine passports - or fewer restrictions for those who are vaccinated - are on the cards for Australia, although the details have yet to be worked out. While we support the right to refuse a vaccine, we also support the introduction of passports, although any restrictions must be temporary and proportionate.
Read moreOur Government doesn't want a bill of rights
Writing for Mondaq, Paul Gregoire looks at our rights in the context of the current COVID lockdowns. He concludes that we have very few, with Australia the only western liberal democracy that "fails to have a piece of legislation that establishes and upholds the rights of the people".
Examining our failure to pass such legislation, he refers to former NSWCCL president Stephen Blanks, saying that an underlying reason for the major parties not being keen on passing such a bill is it would place restrictions on their power whilst in office.
Read the full article: Australia: The federal government does not want a national bill of rights Mondaq 5 Aug '21
COVID-19 'vaccine passport
The ABC considers how the proposed carrot-and-stick approach of vaccine passports might work, for example with the fully vaccinated exempt from state border closures or lockdowns; business given the all clear to remain open during lockdowns, but only for the fully vaccinated; or travel bans to apply only to the unvaccinated.
It moves on to consider whether this kind of conditional restriction would be legal.
NSWCCL President Pauline Wright told the ABC that Australia's powerful health and biosecurity laws gave governments the right to do this sort of thing. "At both state level and federal level, it is legal for the government to impose restrictions on people in times of health emergency," she said.
Read the full article: The COVID-19 'vaccine passport' is coming. Here's how it could work and how it's legal ABC 5 Aug '21
Sydney police need to be more aware of Legal Observers, says NSWCCL
Lawyers Weekly covered our letter to the NSW Police Commissioner over the way volunteer Legal Observers are being treated at protests across the city, saying:
'In a letter addressed to Commissioner Michael Fuller APM, president of NSW Council for Civil Liberties (NSWCCL) Pauline Wright raised concerns over the treatment of volunteer Legal Observers by police at a number of protests in Sydney during recent months.'
Read the full article: Sydney police need to be more aware of Legal Observers, says NSWCCL Lawyers Weekly 5 August 2021
The right to peaceful protest must not be suspended via public health order
The legal right to peaceful protest is fundamental to our democracy. Protests hold governments to account and make our country better. While the powerful few are able to write cheques or call their friends in high places, protests are how the invisible or ignored can become seen and heard by government. Only after tireless, sustained protest did Aboriginal and Torres Strait Islander people win the right to vote, did LGBT+ people achieve marriage equality, and did unions secure the eight-hour work day.
Read moreVaccines: employers have a right to keep everyone safe
Speaking to the Australian, NSWCCL President Pauline Wright backed vaccine mandates in high-risk workplaces and jab passports to access stadiums and nightclubs, saying life itself is a fundamental right.
"It's within the rights of employers to say to employees I need to keep everyone safe. The right to life, the right to be free of disease, is pretty fundamental," she said.
Full article: (subscription required) Life more of a right than jab refusal The Australian 4 Aug '21
Police must not obstruct Legal Observers
Recent incidents in Sydney indicate that NSW Police don't uniformly understand and respect the role of Legal Observers - that must change.
Police have obstructed Legal Observers; instructed them to direct protestors; directed one to stop filming; and questioned their presence at a protest.
In the absence of any police misconduct, police should have no concerns regarding the presence of Legal Observers or their recording of events.
'Australia: police doing the political dirty work'
A Swiss perspective on the friendlyjordies arrest:
"In Australia, politicians use anti-terror law to muzzle critics: an Australian comedian is currently experiencing first-hand how the anti-terror law can also be used."
NSWCCL Treasurer Stephen Blanks tells SRF that "we have a legal system which is weak on protecting legal rights and particularly weak on protecting free speech".
More information:
- Australien: «Die Polizei macht die Schmutzarbeit für die Politik» Schweizer Radio und Fernsehen (SRF) 2 Aug '21
- Are our media freedoms under attack? NSWCCL 27 July '21
OAIC Uber determination: a reminder of privacy failings in Australia
Background
The Office of the Australian Information Commissioner has found Uber failed to appropriately protect the personal data of Australian customers and drivers, which was accessed in a cyber attack in October and November 2016. (For more, see the OAIC's media statement dated 23 July 2021: Uber found to have interfered with privacy).
NSWCCL statement
NSWCCL welcomes the recent determination against Uber, by the Office of the Australian Information Commissioner. However, it is also acts as a warning about the failures of the management of data privacy and data breach notification in Australia.
Read moreVale Hal Wootten
It is with sadness that we mark the passing of Emeritus Professor Hal Wootten AC QC on Tuesday 27 July and express our condolences to Hal’s wife, Gillian Cowlishaw, and all his family.
The founding Dean of the UNSW Law & Justice Faculty, a Supreme Court Judge and a Royal Commissioner, Hal was a longterm NSWCCL member who served on our committee and dedicated his life to the protection of human rights.
His accomplishments went beyond the law, with stints as President of the Australian Conservation Foundation and Chairman of the Australian Press Council. He was also an amateur expert on birds and a breeder of quarter-horses.
Read more