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

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

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 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.

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

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. 

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

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.

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.

In its editorial, the Byron Shire Echo noted both our calls to protect contact tracing data and our coverage of the constitutionality of the lockdown.

More: Editorial - let's all acquiesce

NSWCCL notes with concern a request from NSW police for support from the Australian Defence Force to enforce COVID-19 restrictions. While the army has previously been used to enforce border restrictions and hotel quarantine, the use of the army to control citizens as they go about their daily lives is an unprecedented escalation.

This is a health crisis, not a national security crisis, and it must be approached as such. As noted by NSWCCL committee member Lydia Shelly in an article in the Guardian, the disproportionate policing of lower socio-economic areas that historically have a strained relationship with police is not the answer. 

The NSWCCL is calling for the disallowance of proposed regulations could that could prevent charities from engaging in important advocacy work.

The regulations would allow the Australian Charities and Not-for-profits Commission (ACNC) to deregister an organisation if it “reasonably believes” its members are likely to commit a summary offence.

We echo concerns expressed by many charities that the regulations could empower the regulator to deregister a charity for attending or promoting protests where minor offences are committed without the charity's knowledge or involvement. 

The rejection of Independent MP Zali Steggall's climate action legislation by a Government-dominated parliamentary committee shows how far out of touch the Government is with most Australians' views on climate action.

Polling routinely shows the majority of Australians support climate action: for example, a recent Essential Report shows support ranging from 62% to 81% in support of a range of propositions including preventing new coal mining, zero-carbon targets and developing green industry.

The NSW Council for Civil Liberties is deeply concerned by the escalation in legal sanctions faced by journalists in the course of their work, as highlighted by the recent high profile Friendlyjordies case.

Friendlyjordies, or Jordan Shanks-Markovina, is a well known YouTuber and online commentator. In a number of videos, Shanks-Markovina is deeply critical of the Deputy Premier, John Barliaro, leading to a defamation case over two videos that John Barilaro alleged were part of a smear campaign against him. 

In itself, this was troubling enough: a politician in an uncomfortable position may find that a defamation case provides a convenient shield against having to answer any further awkward questions. Meanwhile, defending such cases can be an extremely costly and time-consuming exercise, giving publications significant pause for thought before publishing strong critiques of people who might be inclined to sue. (For more, see NSWCCL on politicians and defamation).

But what came next was extraordinary.

The arrest

Prompted by a complaint to police by Barilaro, Friendlyjordies producer Kristo Langker was arrested by the NSW Fixated Persons Investigations Unit (FPIU) and charged with stalking Barilaro.

The NSW Council for Civil Liberties is deeply concerned by the tendency of Australian politicians to employ defamation law against journalists and critics. This behaviour has a significant potential chilling effect on freedom of expression, undermining our ability to hold politicians to account.

This weekend saw some disturbing incidents playing out in Sydney during protests against the current lockdowns.

NSWCCL has reviewed some of the footage with concern.

We support the right to peaceful protest - irrespective of whether we agree with the demands of those protesting.

But rights are not absolute and protest should be made in a responsible way that takes account of prevailing circumstances.

In its coverage of the weekend's violent protests The ABC quoted NSWCCL President Pauline Wright, who condemned the weekend's violent anti-lockdown march in Sydney but says people do have the right to protest.

"Rights though are not absolute and people should protest peacefully and at the same time we would call on New South Wales Police to exercise restraint," she said.

More information: Calls for police to show restraint after Sydney COVID-19 protest

We've fielded many queries in the past weeks about the impact of the recent COVID19 lockdowns on our civil liberties. With some help from George Williams, an Australian academic specialising in Australian constitutional law, here are some answers.

The NSW Council for Civil Liberties wrote to Senator Marise Payne today calling for urgent action to rescue people employed by Australia in Afghanistan now, without long delays checking on health, security and character. 

Comments from our Government that those working through subcontractors are not eligible, or that the Government is following rules drawn up by the previous Labour government, are deeply disturbing.

It's time for action, not political point scoring.

The NSW Council for Civil Liberties is calling DFAT to withdraw its 2019 Country Information Report - Sri Lanka, relied on to refuse protection to Tamils including the Murugappan family, due to concerns over its currency and accuracy.

DFAT's country report was criticised recently (27 May) by a UK Upper Tribunal, along with a similar UK report, which the UK Home Office removed the next day (28 May) as it was 'out of date'.