Media coverage: The Guardian

A former president of the Law Council, Pauline Wright, and workplace expert Narreen Young, said that if a CEO of a company or a senior lawyer in a firm were accused of a similar historical crime, they would normally step down while an investigation took place.

“If it was a partner in a law firm, generally speaking a complaint would be made to the Law Society of NSW, if it was in NSW, or the office of the legal services commissioner,” Wright said.

“And an investigation would take place by the independent body, and it would be looking at whether the person was fit and proper to continue on the roll of solicitors, or admitted as a barrister. The potential outcome for a solicitor or barrister is being struck off. Because this is the sort of thing that would bring the profession into disrepute”.

Wright said that, as the first law officer, the attorney general should be held to a similar standard.

Any inquiry would look at “fitness to continue in the role as opposed to criminal guilt”, she said, and thus would not conflict with the criminal law.

“It is not looking at his criminal guilt,” she said. “It is looking at whether or not he is of that very high standard that we expect of ministers, particularly of the first law officer.

“There would be numerous examples where individuals are accused of inappropriate behaviour where it is not referred to the police necessarily,” she said. “You might find the complainant doesn’t want to go to court but is very happy for there to be an investigation internally.”

Wright, who is also the president of the NSW Council of Civil Liberties, said that an independent inquiry could also apply a different standard of proof – higher than the usual civil standard of “balance of probabilities”.

“There is another standard called comfortable satisfaction, which is a higher standard than balance of probabilities, but not as high as reasonable doubt.

“It is the kind of standard that is often applied in administrative proceedings. I would have thought that is the kind of standard you were meaning to apply in a potentially serious allegation”.

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Media Coverage: Australian Financial Review

Ms Wright said the “fact that a criminal prosecution is not proceeding does not mean that the matter is settled in the minds of the public”.

“There is nothing novel about independent inquiries being called to look into allegations even where the conduct alleged amounts to criminal behaviour.

“There is no breach of the rule of law if such an inquiry is conducted fairly in accordance with principles of natural justice or procedural fairness.”

Ms Wright said that if the allegations were true,“it  would cast serious doubt on the integrity of the Attorney General and his fitness to be a Minister.

“For that reason, the PM should call an independent inquiry ensuring that procedural fairness is followed, ensuring the AG knows the case he has to answer and is given the opportunity to respond and clear his name.”

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Media coverage: Sky News Australia

NSW Council for Civil Liberties President Pauline Wright says an inquiry into Christian Porter is necessary because until it is conducted his character and innocence will be in doubt.

Mr Porter yesterday declared historical rape allegations laid against him were false, stating he would not be stepping down from his position as attorney-general because it would set a precedent which could see anyone removed from a position simply by an allegation.

Asked whether he was right in making the point about bowing to pressure over allegations, Ms Wright said his comments proved the need for an inquiry. “Because unfortunately … unless and until an inquiry is held there will be a shadow over the attorney general and over this government,” she told Sky News.

“For a start he is the attorney general of Australia, he is the first law officer, he has got to be above reproach, ministers are held to higher account than others in the community.

“And again the prime minister’s ministerial standard require that conduct of his ministers must both in fact and in appearance comply with the standards.

“And their private conduct in a private capacity has to demonstrate those high standards of personal integrity.”

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Media coverage: The Guardian

New South Wales police have decided to close their investigation into the rape allegation against the attorney general, Christian Porter, an allegation which he has emphatically denied. It is now vital the prime minister institute an independent inquiry to transparently consider the allegation, and the circumstances surrounding the death of the woman who alleged she was raped 30 years ago, as a 16-year-old. The proper governance of the nation demands it. Without an independent inquiry there remains a shadow over the Morrison government and attorney general.

The NSW police reportedly closed the case because there was insufficient admissible evidence. In a criminal case, police must prove their case beyond reasonable doubt - a high bar indeed when the key witness is now deceased and unable to give a first-hand account.

But a criminal prosecution is not the only way to test the truth of an allegation. A fair and independent inquiry would provide Porter with the opportunity to clear his name. An inquiry would consider all available evidence, including that of the attorney general, if he chose to participate, statements made by the complainant, evidence of contemporaneous complaint, diary entries, all of which can be tested through a fair process.

Without an inquiry, the shadow of doubt will persist within the Australian public as to whether Porter is a fit and proper person to retain his role as Australia’s first law officer.

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Media Coverage: The New Daily

Pressure is mounting on the cabinet minister at the centre of a historic rape allegation to step down and for a judicial inquiry into the claims.

The accused minister, who emphatically denies all allegations, is expected to make a public statement on Wednesday and repeated his staunch denial of the brutal assault.

Pressure is building on Prime Minister Scott Morrison to establish a judicial inquiry into claims the man raped a 16-year-old girl in 1988. The woman at the centre of the accusations died in 2020.

Lawyer Michael Bradley, who represented the woman, said it was no longer a criminal matter.

“We have a senior cabinet minister who’s been accused of a grave crime and that calls into question his integrity and, at the moment, the integrity of the whole cabinet,” he told the Seven Network on Wednesday.

Mr Bradley believes the minister should step down while an independent inquiry looks at the allegation.

NSW Council for Civil Liberties president Pauline Wright said independent inquiries were routinely conducted in government and corporate settings.

She said any investigation would need to ensure the minister received a fair hearing.

“The Australian people deserve to have it got to the bottom of. There needs to be some kind of investigation into this,” Ms Wright told ABC radio.

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Media coverage: 7News

'Senior lawyers have schooled the prime minister on his understanding of Australia's criminal justice system as they urge him to launch an independent investigation into rape allegations against a senior minister...

The NSWCCL's president Pauline Wright says passing the issue to the federal police is "nothing short of an abrogation" of Mr Morrison's responsibility for the proper governance of Australia.

"It is the prime minister, not the commissioner of the AFP, who is ultimately bound to consider whether the person is fit to serve in cabinet," she said on Tuesday.

"While the police investigation and criminal process should run its course, the prime minister should be considering as a matter of priority, and irrespective of any criminal process, the institution of an independent investigation into the complaint."

The council says Mr Morrison should follow the approach taken by the High Court and launch an independent inquiry.

Former High Court justice Dyson Heydon was last year found by the court's own independent inquiry to have sexually harassed six young female associates.

Ms Wright says independent investigations are a routine part of corporate and government department procedure for staff facing allegations of sexual harassment or bullying.

"Internal arms' length investigations are commonly undertaken in workplaces either in a parallel process if police charges are pursued, or as an alternative if police charges are not pursued," the former Law Council president said.'

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2 March 2021

PUBLIC STATEMENT

Prime Minister abrogates his responsibility to look into the allegations of historical rape

In response to questions at a press conference yesterday about allegations made by a woman that she was raped in 1988 by a man who is now a Cabinet Minister, the Prime Minister stated that he had reported the matter to the Australian Federal Police and that the Commissioner had indicated that there was “nothing immediate” in terms of necessary actions that he considered the PM should be taking. The Prime Minister said that he was awaiting the advice of the Commissioner on the status of “other jurisdictions” that could be potentially involved when the Commissioner was “in a position to do so”.

The NSW Council for Civil Liberties has concerns with the potential for sharing of personal and health information collected using the ServiceNSW check in tool.

The following correspondence, addressing our concerns, was sent to Minister Dominello, Department Customer Services. Similar letters were sent to Minister Hazzard and Minister Elliott.

NSWCCL made a Submission to this Inquiry. 

Executive Summary:

1. The New South Wales Council for Civil Liberties (NSWCCL) welcomes the opportunity to make a submission to the Education Committee concerning the Education Legislation Amendment (Parental Rights) Bill 2020 (“The Bill”). 
2. NSWCCL considers that the Bill should not be passed. Not a single aspect of the Bill improves upon the law as it currently stands in NSW. Moreover, the Bill is an appalling contribution to public debate and education policy in this State.
3. In this submission, NSWCCL will argue that the Bill should not be passed for the following compelling reasons. The Bill:
   a. is plainly bigoted, discriminatory and cruel;
   b. is likely unconstitutional;
   c. is injurious to fundamental human rights, including freedom of expression;
   d. would harm education in NSW;
   e. is unnecessary; and
   f. violates the principle of coherence.
4. This is a remarkable combination of defects. Residents of NSW deserve better from their lawmakers.
5. We are happy to expand upon our submission if invited to provide evidence before the Committee.

Recommendation 1: NSWCCL recommends that the Committee and the NSW Parliament reject the Education Legislation Amendment (Parental Rights) Bill 2020 in its entirety.

More information: 

• Our submission
• Transcript of our appearance before the Inquiry. 

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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